Pending - Other Pending
Property - Other Real Property
MITCHELL L. BECKLOFF
CRAIG D. KARLAN
NORTHWESTERN ENGINEERING COMPANY
FREUND JONATHAN D.
REAGAN BARRY JAMES
FREUND JONATHAN DANIEL
11/1/2017: Civil Case Cover Sheet
1/22/2018: Request for Entry of Default / Judgment
1/24/2018: Request for Entry of Default / Judgment
2/16/2018: Case Management Statement
3/1/2018: Minute Order
4/11/2018: Minute Order
5/29/2018: Minute Order
DocketAnswer; Filed by NORTHWESTERN ENGINEERING COMPANY (Cross-Defendant)[+] Read More [-] Read Less
Docketat 09:00 AM in Department M; Jury Trial - Not Held - Vacated by Court[+] Read More [-] Read Less
Docketat 09:00 AM in Department M; Final Status Conference - Not Held - Vacated by Court[+] Read More [-] Read Less
DocketNotice of Posting of Jury Fees; Filed by JOSEPH SHEMARIA (Defendant)[+] Read More [-] Read Less
DocketAnswer; Filed by JOSEPH SHEMARIA (Defendant)[+] Read More [-] Read Less
DocketNotice of Posting of Jury Fees; Filed by NORTHWESTERN ENGINEERING COMPANY (Plaintiff)[+] Read More [-] Read Less
DocketVerified Cross-Complaint for Treaspass, Unjust Enrichment and Nuisance; Filed by JOSEPH SHEMARIA (Cross-Complainant)[+] Read More [-] Read Less
DocketStipulation and Order ( of Parties Re: Pleadings); Filed by NORTHWESTERN ENGINEERING COMPANY (Plaintiff); JOSEPH SHEMARIA (Defendant)[+] Read More [-] Read Less
Docketat 08:30 AM in Department O; Case Management Conference - Held[+] Read More [-] Read Less
DocketMinute Order ( (Case Management Conference)); Filed by Clerk[+] Read More [-] Read Less
DocketRequest for Entry of Default (AS TO: JOSEPH SHEMARIA - RECEIVED and VACATED. see reject letter dated 1/29/18 ); Filed by Attorney for Plaintiff[+] Read More [-] Read Less
DocketRequest for Entry of Default / Judgment; Filed by NORTHWESTERN ENGINEERING COMPANY (Plaintiff)[+] Read More [-] Read Less
DocketRequest for Entry of Default / Judgment; Filed by Plaintiff[+] Read More [-] Read Less
DocketRequest 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[+] Read More [-] Read Less
DocketProof-Service/Summons; Filed by Attorney for Plaintiff[+] Read More [-] Read Less
DocketProof-Service/Summons; Filed by NORTHWESTERN ENGINEERING COMPANY (Plaintiff)[+] Read More [-] Read Less
DocketComplaint; Filed by NORTHWESTERN ENGINEERING COMPANY (Plaintiff)[+] Read More [-] Read Less
DocketComplaint Filed[+] Read More [-] Read Less
DocketSummons (on Complaint)[+] Read More [-] Read Less
DocketCivil Case Cover Sheet; Filed by NORTHWESTERN ENGINEERING COMPANY (Plaintiff)[+] Read More [-] Read Less
Case Number: ****8312 Hearing Date: December 15, 2020 Dept: O
Case Name: Northwestern Engineering Company v. Shemaria
Case No.: ****8312
Calendar #: 5
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
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.