FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. The disputed area
Lilli Shoen (Shoen) and Juliet Zacarias (Zacarias) are neighbors whose backyards consist primarily of steep upward hillsides. At the top of Zacarias's hillside and midway up Shoen's is a flat patch of ground. The property line zigzags through this flat patch. Of this patch, 490 square feet are on Shoen's side of the line; the remainder is on Zacarias's.
Before either Shoen or Zacarias bought their parcels, someone had leveled out the flat patch, poured threе concrete "meditation pads," and placed ornamental gravel on the patch. The prior owner of Zacarias's parcel had also installed steps made of railroad ties leading all the way up to the flat patch, while the prior owner of Shoen's parcel had installed railroad-tie steps leading two-thirds of the way to the flat patch but stopping about 20 to 30 feet shy of the patch.
B. Zacarias improves the flat patch while believing it was part of her property
Zaсarias bought her parcel in 2003. She mistakenly believed that the entire flat patch was on her land. Over the next two years, she (1) brought in contractors to grade the patch to make it flatter, (2)
1. Zacarias learns she does not own the entire patch
In October 2005, the prior owner of Shoen's land did a survey of his property line and discovered that 490 square feet of the flat patch belonged to him ("the disputed area"). The prior owner shared this discovery with Zacarias, but told her she could continue to use the entire flat patch. The prior owner told Zacarias that his willingness to let her keep her furniture in the disputed area lasted only as long as he owned the property, and Zacarias understood as much.
2. The Shoen family buys the property and allows Zacarias's use of the disputed area to continue
In 2006, the Shoen family trust acquired the parcel now owned by Shoen. At that time, the prior owner disclosed Zacarias's encroachment of the flat patch. Both Shoen and her father admitted knowing that the disputed area was on their land. From that time until April 2011, and in an effort to be a "good neighbor," neither the trustees of the Shoen family trust nor Shoen (who was living on the property) told Zacarias to stop using the disputed area.
In the latter part of 2011 and the early part of 2012, Shoen acquired the property from the Shoen family trust. In a series of letters sent first by Shoen's father in April 2011, then Shoen in April 2012, then Shoen's attorney in May 2012, the authors asked Zacarias to vacate the disputed area because Shoen desired to landscape the area. Zacarias ignored all of the letters.
3. Zacarias's work on the disputed area between 2006 and 2011-2012
During the period between the Shoen family trust acquiring the disputed area and its (and Shoen's) letters asking Zacarias to stop using that area, Zacarias spent time and money to keeр the entire flat patch usable. In particular, she (1) kept the trees near the patch trimmed, (2) cleared the brush on her hillside every year, (3) replaced the plants comprising the low ficus hedge when it died, (4) watered the hedges, (5) sometimes used the cabana's lighting or other electricity, and (6) re-upholstered the top of the cabana and the furniture. Zacarias paid the gardener who trimmed the trees $ 130 per month for the upkeep of her entire parcel of land. She paid laborers $ 700 per year to clear the brush on all of her land. The new ficus hedge cost $ 2,350 to
II. Procedural Background
A. Complaint and cross-complaint
In June 2012, Shoen sued Zacarias for damages, injunctive and declaratory relief on theories of (1) trespass, (2) nuisance, (3)
B. First trial on equitable easement and reversal
Pursuant to the parties' stipulation, the case went to trial solely on the existence of an equitable easement. The trial court granted Zacarias an equitable easement over the disputed area, but we reversed after concluding that Zacarias had not proven that the hardship she would experience in moving her portable patio furniture was "greatly disproportionate" to the hardship on Shoen in losing use of her own property. ( Shoen v. Zacarias (2015)
C. Second bifurcated trial on irrevocable license and nuisance
On remand, Zacarias asserted that she had an irrevocable license to use the disputed area based on Shoen's acquiescence to her use of the disputed area. Pursuant to stipulation, the case went to bifurcated trial, first on the issue of whether Zacarias's license to use the disputed area should be deemed irrevocable and, if so, second on the issue of whether Shoen's continued use of cameras to view that area would constitute a private nuisance.
1. Irrevocable license trial and ruling
During the bifurcated trial on the existence of an irrevocable license, the trial court did a site visit to the flat patch, heard testimony from Shoen, Zacarias and the former owner of Shoen's property, and admitted the prior testimony of Shoen's father. During her testimony, Zacarias "estimate[d]" that from 2003 onward she spent "[a]t lеast" $ 15,000 to $ 25,000 "to improve [and] maintain" the disputed area." This amount included $ 8,638.55 for the cabana and other portable furniture on the flat patch. It also included a
The trial court ruled that Zacarias should be awarded an exclusive irrevocable license to use the disputed area and that this licensе would last forever, even after Zacarias sold the property. Although acknowledging that "some significant portion of" Zacarias's estimate of the $ 15,000 to $ 25,000 "was spent before " Shoen acquiesced to Zacarias's use of the disputed area, the court nonetheless concluded that Zacarias had "spent substantial sums and physical labor for ... landscaping, maintenance and care of the [d]isputed [a]rea" during the "six and possibly seven years" that Zacarias had used it with Shoen's acquiescence. Thе court further ruled that "the equities" "favor[ed]" granting the license not only to Zacarias but also in perpetuity to her successors-in-interest because the disputed area was "accessible from the Zacarias property" but did not "appear" to "provide any benefit to the Shoen property" because it was not viably accessible from that property. The court lastly ruled that this permanent license would also be exclusive due to the physical layout of the parcels and the parties' bad relationship.
2. Nuisance trial and ruling
Following further briefing, the court ruled that Shoen's two video cameras amounted to a private nuisance because
D. Judgment and appeal
Following entry of judgment, Shoen filed this timely appeal.
DISCUSSION
Shoen argues that the trial court erred in granting Zacarias a perpetual irrevocable license and in declaring her placement of the two video cameras to be a private nuisance. We review the trial court's ultimate decision to grant an irrevocable license and the duration of that license for an abuse of discretion, but review any subsidiary factual findings for substantial evidence and any subsidiary legal questiоns de novo. ( Richardson , supra ,
I. Irrevocable License
A. Pertinent law
When a landowner allows someone else to use her land, the owner is granting a license. ( Emerson , supra ,
Critically, courts may exercise their power to declare a license irrevocable only if the expenditures in reliance on the license are "substantial," "considerable" or "greаt." ( Richardson , supra ,
Courts have faithfully limited the exercise of their power to declare a license to be irrevoсable to those situations in which the licensee has expended substantial amounts of money or labor in reliance on a license. Nearly every case where a license has been declared irrevocable has involved the licensee's permanent alteration of the land and the ensuing upkeep, whether by building, altering or upgrading a roadway ( Cooke , supra , 38 Cal.2d at pp. 285-287,
B. Analysis
The trial court abused its discretion in granting Zacarias a perpetual irrevocable license for two reasons.
Although substantial evidence supports the trial cоurt's findings that the
Zacarias's estimate does not constitute substantial evidence of a substantial expenditure of money for two reasons. First, the estimate is over-inclusive temporally. The estimate includes all of Zacarias's initial improvements to the flat patch, even though Zacarias freely admitted that those improvements were made while she labored under the mistaken belief thаt the whole patch belonged to her and thus the improvements were not made in reliance on any license. Zacarias testified that the patio furniture and cabana cost her $ 8,638.55, but made no effort to quantify the other initial improvements, which, as noted above, also included hiring contractors to grade the patch, removing bamboo and overgrown brush, replacing the ornamental gravel, installing sprinklers, installing four different types of lighting (electric and solar-powered), and buying and planting the first hedge. The trial court acknowledged that "some significant portion" of Zacarias's $ 15,000 to $ 25,000 estimate was incurred before Zacarias had any license, but the court did not explain how or why the remaining expenditures-that is, the portion attributable solely to upkeep after the license-was also significant.
Second, the estimate's calculation of the upkeep costs incurred in reliance on Shoen's license rests on faulty factual premises. Zacarias calculated the upkeep portion of her estimate as including (1) her monthly gardening bill of $ 130, (2) her annual brush clearing bill of $ 700, and (3) her monthly average electrical and water bill of $ 1,200, all proportionately reduced by the percentage of the size of the disputed area (490 square feet) over the size of her entire lot (6,928 square feet). The method Zacarias used to apportion her property expenditures was both mathematically and factually inaccurate. It is mathematically inaccurate because the mathematically correct way to determine the percentage of her bills attributable to the disputed area is to assess the size of disputed area (490 square feet) vis-a-vis the size of her entire lot plus the disputed area (7,418 square feet) because the bills necessarily included the cost to garden, water and light that area as well; the larger denominator makes the percentage attributable to the disputed area smaller.
Once Zacarias's estimate is discounted to correct its temporal and logical defects, what remains of the upkeep expenses is the share of the monthly gardening and annual brush clearing bills attributable to the disputed area, the even smaller share of the monthly electric and water bills attributable to the disputed area, occasionally replacing sprinkler heads, and the one-time $ 2,350 replacement cost of the ficus trees. These upkeep costs are akin to other expenditures that courts have determined not to be "substantial." (See, e.g., Belmont County , supra ,
Zacarias raises three arguments in response.
First, Zacarias argues that our prior conclusion in Shoen I that she was not entitled to an equitable easement is not dispositive of whether she is entitled to an irrevocable license. We agree. (Accord, Richardson , supra , 233 Cal.App.4th at pp. 753-754,
Lastly, Zacarias asserts that she is not required to quantify a "specific dollar amount" of her expenditures. ( Richardson , supra ,
2. Abuse of discretion in granting an irrevocable license in perpetuity
In fixing the duration of an irrevocable license, the license should " 'continue for so long a time as the nature of it сalls for.' " ( Cooke , supra ,
The trial court abused its discretion in making any irrevocable license perpetual in duration for two reasons.
First and foremost, the court used the wrong legal standard. ( People v. Knoller (2007)
Second, the proper analysis could not have yielded an irrevocable license that is perpetual in duration. This is not a case where Zacarias is seeking to obtain a license for long enough to obtain a return on her major investments in improving the flat patch because she made all of those improvements before any license was granted. The only investment to be recovered here is Zacarias's annual investment in upkeep. We decline to hold that a licensee's annual cost of upkeep, without more, warrants a perpetual license to recover the investment in upkeep; if we did, every irrevocable license would be perpetual. Such a result effectively rewritеs our Supreme Court's more nuanced and fact-specific
In light of our analysis, we have no occasion to reach the other arguments raised by the parties with regard to the irrevocable license.
II. Private Nuisance
Although the terms of the parties' stipulation on remand (as summarized by the trial court) appear to make the issue of whether there is an irrevocable license dispositive of whether Shoen's cameras constitute a nuisance (because
DISPOSITION
The judgment is reversed as to Zacarias's entitlement to an irrevocable license. The judgment is reversed and remanded on Zacarias's nuisance claim. Shoen is entitled to her costs on appeal.
We concur:
LUI, P.J.
ASHMANN-GERST, J.
Notes
The trial court also seemed to find that Zacarias did not install permanent electrical wiring until 2007 or 2008 because Shoen only saw the cabana light attached to a "surge protected extension cord" when she visited the disputed area during that time frame, but the court's suggestion is not supported by substantial evidence because Zacarias testified that she installed all of the electrical before 2005 and because Shoen also testified that she saw electrical wiring up to the patch during the 2007 or 2008 visit. Construing the testimony in the light most favorable to the trial court's finding, Shoen's testimony indicates that Zacarias at some point after 2007 or 2008 ran a different wire from the patch's border to the top of the cabana, but this minor additional improvement does not alter our analysis.
The parties did not include the stipulation itself in the record on appeal.