This case was last updated from Los Angeles County Superior Courts on 06/16/2019 at 16:06:05 (UTC).

NORTHWESTERN ENGINEERING COMPANY VS JOSEPH SHEMARIA

Case Summary

On 11/01/2017 NORTHWESTERN ENGINEERING COMPANY filed a Property - Other Real Property lawsuit against JOSEPH SHEMARIA. This case was filed in Los Angeles County Superior Courts, Santa Monica Courthouse located in Los Angeles, California. The Judges overseeing this case are MITCHELL L. BECKLOFF and CRAIG D. KARLAN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8312

  • Filing Date:

    11/01/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MITCHELL L. BECKLOFF

CRAIG D. KARLAN

 

Party Details

Plaintiff and Cross Defendant

NORTHWESTERN ENGINEERING COMPANY

Defendant and Cross Plaintiff

SHEMARIA JOSEPH

Attorney/Law Firm Details

Plaintiff Attorney

FREUND JONATHAN D.

Defendant Attorneys

PEREZ & HAWES

REAGAN BARRY JAMES

Cross Defendant Attorney

FREUND JONATHAN DANIEL

 

Court Documents

Complaint

11/1/2017: Complaint

Civil Case Cover Sheet

11/1/2017: Civil Case Cover Sheet

Summons

11/1/2017: Summons

Unknown

11/30/2017: Unknown

Request for Entry of Default / Judgment

1/22/2018: Request for Entry of Default / Judgment

Unknown

1/24/2018: Unknown

Request for Entry of Default / Judgment

1/24/2018: Request for Entry of Default / Judgment

Unknown

2/15/2018: Unknown

Unknown

2/15/2018: Unknown

Case Management Statement

2/16/2018: Case Management Statement

Minute Order

3/1/2018: Minute Order

Unknown

4/9/2018: Unknown

Minute Order

4/11/2018: Minute Order

Unknown

5/4/2018: Unknown

Unknown

5/4/2018: Unknown

Unknown

5/23/2018: Unknown

Unknown

5/29/2018: Unknown

Minute Order

5/29/2018: Minute Order

44 More Documents Available

 

Docket Entries

  • 06/07/2019
  • Answer; Filed by NORTHWESTERN ENGINEERING COMPANY (Cross-Defendant)

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  • 05/20/2019
  • at 09:00 AM in Department M; Jury Trial - Not Held - Vacated by Court

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  • 05/17/2019
  • at 09:00 AM in Department M; Final Status Conference - Not Held - Vacated by Court

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  • 05/08/2019
  • Notice of Posting of Jury Fees; Filed by JOSEPH SHEMARIA (Defendant)

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  • 05/06/2019
  • Answer; Filed by JOSEPH SHEMARIA (Defendant)

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  • 05/06/2019
  • Notice of Posting of Jury Fees; Filed by NORTHWESTERN ENGINEERING COMPANY (Plaintiff)

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  • 05/06/2019
  • Verified Cross-Complaint for Treaspass, Unjust Enrichment and Nuisance; Filed by JOSEPH SHEMARIA (Cross-Complainant)

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  • 04/29/2019
  • Stipulation and Order ( of Parties Re: Pleadings); Filed by NORTHWESTERN ENGINEERING COMPANY (Plaintiff); JOSEPH SHEMARIA (Defendant)

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  • 04/26/2019
  • at 08:30 AM in Department O; Case Management Conference - Held

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  • 04/26/2019
  • Minute Order ( (Case Management Conference)); Filed by Clerk

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84 More Docket Entries
  • 01/24/2018
  • Request for Entry of Default (AS TO: JOSEPH SHEMARIA - RECEIVED and VACATED. see reject letter dated 1/29/18 ); Filed by Attorney for Plaintiff

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  • 01/24/2018
  • Request for Entry of Default / Judgment; Filed by NORTHWESTERN ENGINEERING COMPANY (Plaintiff)

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  • 01/22/2018
  • Request for Entry of Default / Judgment; Filed by Plaintiff

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  • 01/22/2018
  • Request for Entry of Default (AS TO: JOSEPH SHEMARIA - RECEIVED AND REJECTED. MISSING INFORMATION ON CIV-100 FORM. REJECT LETTER SENT ON 1/23/18 ); Filed by Attorney for Plaintiff

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  • 11/30/2017
  • Proof-Service/Summons; Filed by Attorney for Plaintiff

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  • 11/30/2017
  • Proof-Service/Summons; Filed by NORTHWESTERN ENGINEERING COMPANY (Plaintiff)

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  • 11/01/2017
  • Complaint; Filed by NORTHWESTERN ENGINEERING COMPANY (Plaintiff)

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  • 11/01/2017
  • Complaint Filed

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  • 11/01/2017
  • Summons (on Complaint)

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  • 11/01/2017
  • Civil Case Cover Sheet; Filed by NORTHWESTERN ENGINEERING COMPANY (Plaintiff)

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Tentative Rulings

Case Number: SC128312    Hearing Date: December 15, 2020    Dept: O

Case Name:    Northwestern Engineering Company v. Shemaria

Case No.: SC128312

Hearing: 12-15-20

Calendar #:    5

Notice: OK

Complaint Filed: 11/1/17

Motion C/O: 2-15-21

Discovery C/O: 1-28-21

Trial Date: 2-28-21

______________________________________________________________________________

SUBJECT: MOTION FOR PRELIMINARY INJUNCTION

MOVING PARTY:  Defendant/X-Complainant Joseph Shemaria

RESP. PARTY: Plaintiff/X-Defendant Northwestern Engineering Company

 

TENTATIVE RULING

Defendant/X-Complainant Shemaria’s Motion for Preliminary Injunction is GRANTED.

CCP §1008(b) does not apply.  The Court previously denied the ex parte application for TRO and Injunction without prejudice on 10-8-19.  See Farber v. Bay View Terrace Homeowners Assn. (2006) 141 Cal.App.4th 1007, 1015; Nat’l Granger of Order of Patrons of Husbandry v. Cal. Guild (2019) 38 Cal.App.5th 706, 716 fn.10.  The motion is also supported by the December 2019 deposition of Munz, which had not yet been taken in October 2019.

Likelihood of Prevailing.  The Court finds Shemeria establishes a likelihood of prevailing on the merits of his trespass claim.  Further, Northwestern Engineering Company will not likely prevail on the prescriptive easement claim.  Northwestern Engineering is seeking a prescriptive easement based on physical encroachments on the breezeway.  See Complaint, ¶8 (NEW used breezeway for “storage bins,” “built a shelf and poured concrete on the breezeway,” “fixture was erected in the rear portion of the breezeway,” and “used the breezeway since purchasing the NEW property to store ladders, exterior partitions, stands, linens and a linen bin, cardboard and a range of other materials”).  Such a prescriptive easement would prevent Shemaria from using the property covered by these encroachments and give NWE the exclusive right to use the property.  Such an exclusive right is an estate in the land, not an easement over the land, and is impermissible here.  See Harrison v. Welch (2004) 116 Cal.App.4th 1084, 1090; Silacci v. Abramson (1996) 45 Cal.App.4th 558, 564; Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1307 (trial court erred in granting homeowner prescriptive easement that amounted to adverse possession); Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 764 (distinguishing Silacci and Mehdizadeh; trial court properly awarded encroaching neighbors “easement” that gave them exclusive right to use parcels that they had been using; court did not grant exclusive prescriptive easement, but rather used its equitable powers to create protective interest in favor of encroacher).  

Second, Shemaria’s evidence establishes NWE’s use was with his permission and that NWE and its predecessor acknowledged his ownership and right in the property.  See Motion, Dec. of J. Shemaria, ¶¶6-37.  “To establish the elements of a prescriptive easement, the claimant must prove use of the property, for the statutory period of five years, which use has been (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right.”  Harrison, supra, 116 Cal.App.4th at 1090.  “In most of the cases asserting the requirement of a claim of right, it means no more than that possession must be hostile, which in turn means only that the owner has not expressly consented to it by lease or license or has not been led into acquiescing in it by the denial of adverse claim on the part of the possessor.”  Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 450 (citing 3 Casner, American Law of Property (1952) Title by Adverse Possession, §5.4, p. 776). 

Shemaria testifies that, in 1983, NWE’s predecessor requested permission to use the breezeway for storage and delivery access and Shemaria agreed.  See Motion, Dec. of J. Shemaria, ¶13.  Shemaria testifies NWE never informed Shemaria of their assertion of a claim of right.  Id. at ¶24.  Shemaria demanded that NWE remove its refrigerator from the breezeway in January 2000.  Id. at ¶26.  In response, NWE agreed and requested permission to continue using the breezeway for storage, and Shemaria granted NWE permission.  Id. at ¶28.  Shemaria then withdrew that permission in 2017.  Id. at ¶¶34 and 37.  NWE also partially complied with Shemaria’s requests to stop using the breezeway in 2017.  Id. at ¶¶38, 42.

NWE’s evidence in response does not dispute Shemaria’s testimony that he gave permission to both NWE and its predecessor to use the breezeway.  NWE fails to present any evidence that would support a finding that their use was hostile to Shemaria or under a claim of right. 

 

Finally, Shemaria clearly establishes his ownership of the breezeway, his termination of NWE’s permission to use the breezeway, and NWE’s refusal to cease use of the breezeway.  See Motion, Dec. of J. Shemaria, ¶¶5 (2017 survey), 34-45.  NWE does not dispute these facts.  See Dec. of J. Adelstein, ¶¶6-12. 

Irreparable harm.  Shemaria establishes irreparable harm if the injunction does not issue.  Shemaria is currently subject to an enforcement action due to NWE’s use of the property.  The notice issued by HCDILA requires Shemaria to remove all items from the breezeway, including all items stored in the area and the “illegal construction” erected by NWE.  See Motion, Dec. of J. Shemeria, Ex. 8.  Failure to comply will potentially expose Shemaria to placement of the property in the Rent Escrow Account Program and/or criminal prosecution, and continuing penalties and fines.  Id. at Ex. 15, Deposition of P. Munz, 30:16-25-31:1-25.  The items and the illegal construction are also a fire hazard and a public danger because it blocks egress capability down the side of the building.  Id. at Ex. 12, Deposition of P. Munz, 21:21-25 to 22:1-10 and 29:2-9,19-25.  The exposure to potential criminal liability and placement of the property in REAP, as well as being subject to an ongoing enforcement action is irreparable harm, particularly given that the violation is entirely the result of NWE’s conduct.

NWE argues that the COVID stay on any enforcement action and the fact that criminal liability and placement in REAP are only possible outcomes if the Shemaria fails to comply with the HCDILA notice.  NWE is suing to continue using the breezeway in precisely the manner that gave rise to the HCDILA notice. Without issuance of the injunction, there is no reason to believe that these outcomes will remain mere possibilities.  NWE has not indicated that it will voluntarily comply with HCDILA’s notice.  Moreover, the COVID moratorium does not remedy the existence of an ongoing enforcement action against Shemaria or the existence of a health hazard. 

Balancing of the equities.  NWE is using the breezeway illegally, according to the HDILA.  It would be inequitable to allow NWE to continue using the breezeway illegally.  ON the other hand, the equities weigh in favor of the injunction, because it would force NWE to cure the illegal conditions and terminate the enforcement action against Shemaria.  Again, the enforcement action against Shemaria was triggered solely by NWE’s use of the property. 

Neither party offers any evidence regarding the appropriate amount of a bond.  Counsel are encouraged to meet and confer regarding what the cost would be to remove the fixatures and other personal property  NEW maintains in the breezeway.

The motion for preliminary injunction is GRANTED upon the condition a bond in the amount of ____________ is posted. 

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