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LAWRENCE A. JACOBSON, SBN 057393

SEAN M. JACOBSON, SBN 227241

COHEN AND JACOBSON, LLP

66 Bovet Road, Suite 285

San Mateo, CA 94402

Telephone: (650) 261-6280

laj@cohenandjacobson.com

Attorneys for Amir Shahmirza

(Agent for Komir, Inc.) and Komir, Inc.

UNITED STATES BANKRUPTCY COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

In re

PG&E CORPORATION,

- and - 

PACIFIC GAS AND ELECTRIC

COMPANY,

Debtors.

G Affects PG&E Corporation

G Affects Pacific Gas and Electric Company

O Affects both Debtors

Case No. 19-30088 (DM)

Chapter 11

(Lead Case) (Jointly Administered)

RESPONSE TO PG&E’S COUNTERMOTION FOR PARTIAL SUMMARY

JUDGMENT OF ISSUES IN

REORGANIZED DEBTORS OBJECTION

TO CLAIM #2090 AND CLAIMANT’S

RESPONSE THERETO

[Reply to PG&E Opposition to Motion for

Partial Summary Judgment by Komir, Inc.,

Filed Separately]

Date: April 11, 2023

Time: 10:00 a.m.

Place: (Tele/Videoconference Appearances

Only)

United States Bankruptcy Court

Courtroom 17, 16th Floor

San Francisco, CA 94102

RESPONSE TO PG&E’S COUNTER-MOTION FOR PARTIAL SUMMARY JUDGMENT 1

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Table of Contents

I. THE COMPETING MOTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. Claimant’s Motion For Determination of Extinguishment of Easements by

Condemnation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

B. PG&E’s “Counter-Motion for Partial Summary Judgment” is Presented in its

Opposition to Claimant’s Motion for Partial Summary Judgment. . . . . . . . . . . 1

II. THE RELEVANT OPERATIVE FACTS COMPEL A DETERMINATION THAT . 3

(1) PG&E CANNOT, UNDER ANY THEORY, OBTAIN ANY “PRESCRIPTIVE

EASEMENT” FOR ITS CLAIM OF EXCLUSIVE USE OF THE AREA

OCCUPIED BY ITS TRANSMISSION LINES DUE TO NON-PAYMENT OF

REAL PROPERTY TAXES AND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

(2) PG&E FAILED TO ESTABLISH THE ELEMENTS OF PRESCRIPTIVE

EASEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

III. LEGAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. Summary of Legal Conclusions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

B. PG&E Holds No Prescriptive Rights to Exclusive Use of the Area Occupied by

the Old Transmission Lines or the New Transmission Lines Because it Failed to

Pay the Real Property Taxes Assessed Against the Property or the Area of

Claimed Exclusive Use.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

C. No Prescriptive Rights Arise When the Occupancy Is Permissive. . . . . . . . . . . . 8

D. The Alteration of a Prescriptive Occupancy to a Different or Greater Area

Breaks the Continuity and Destroys the Claim to Prescriptive Rights.. . . . . . . 10

E. PG&E Has Not Acquired Any Indefeasible Prescriptive Rights as a Result of the

Application of Any Statute of Limitations.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

1. Continuing Trespass - No Statute of Limitations Applicable

. . . . . . 11

2. Timely Filing of Lawsuit - Commenced within Less Than One Year . . 13

3. The Trespass Claim Is Distinguishable from the Acquisition of an Estate

in Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

F. PG&E Has Not Acquired Any Indefeasible Prescriptive Rights as a Result of Its

First Bankruptcy Case In Which No Notice Was Sent to Komir or Shahmirza.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

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Table of Authorities

Cases

Ajax Magnolia One Corp. v. So. Cal. Edison Co. (1959) 167 Cal.App.2d 743 . . . . . . . . . . . . . . . . . 7

Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862 . . . . . . . . . . . . 11, 12

Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160 . . . . 12

Blackmore v. Powell (2007) 150 Cal.App.4th 1593 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

City of Los Angeles v. Igna (1962) 208 Cal.App.2d 338 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Cushman v. Davis (1978) 80 Cal.App.3d 731 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Dooling v. Dabel, (1947) 82 Cal.App.2d 417. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Gaither v. Gaither (1958) 165 Cal.App.2d 782 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Gray v. McCormick (2008) 167 Cal.App.4th 1019. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Guerra v Packard, (1965) 236 Cal.App. 2d 272 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Guerra v Packard, 236 Cal.App. 2d 272 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8, 10

Hansen v Sandridge Partners, L.P. (2018) 22 CA 5th 1020 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

Jones v. Tierney-Sinclair (1945) 71 Cal.App.2d 366 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Kapner v. Meadowlark Ranch Assn. (2004) 116 Cal.App.4th 1182. . . . . . . . . . . . . . . . . . . . . . . . . . 7

Los Angeles Brick etc. Co. v.City of Los Angeles (1943) 60 Cal.App.2d 478 . . . . . . . . . . . . . . . . . . 9

Lyle v State of California (2007) 153 CA4th 281. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-13

Mangini v Aerojet-General Corp (1991) 230 CA3d 1125 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

Matthiessen v. Grand, (1928) 92 Cal.App. 504 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

McLear-Gary v Scott, (2018) 25 CA5th 145 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Mehdizadeh v Mincer (1996) 46 Cal.App.4th 1296 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

O'Banion v. Borba (1948) 32 Cal.2d 145 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Pasadena v. California-Michigan etc. Co. (1941) 17 Cal.2d 576 . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Raab v Casper (1975) 51 Cal.App.3d 866,. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Silacciv. Abramson (1996) 45 Cal.App.4th 558 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

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Smith v Skrbek, 71 Cal. App. 2d 351 (1945). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 8

Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153 CA4th 583 . . . . . . . . . . . . . . . . 12

Statutes

11 USC § 523(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Bankruptcy Local Rules of the Bankruptcy Court for the Northern District of California, Rules 1001-

2, 56-1, 56-2, and 56-3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

California Civil Code § 325 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6-8, 14

Civil Code section 3334 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Code of Civil Procedure § 338(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Federal Rules of Civil Procedure, Rule 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Texts

Corpus Juris Secundum, 28 C.J.S. 668, § 18 (2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

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Amir Shahmirza, as agent of, and acting on behalf of, Komir, Inc. (“Komir” or “Claimant”),

submits the following points and authorities in opposition to PG&E’s Counter-Motion for Partial

Summary Judgment as contained in its combined pleading entitled “Opposition to of Claimant’s

Motion for Partial Summary Judgment of Issues in Reorganized Debtors Objection to Claim #2090

and In Claimant’s Response Thereto” (“PG&E Opposition”). Claimant separately files its Reply to

the PG&E Opposition to Komir’s initiating Motion for Summary Judgment.

I. THE COMPETING MOTIONS

A. Claimant’s Motion For Determination of Extinguishment of Easements by

Condemnation.

Claimant maintains that PG&E has no easement rights based upon the recorded documents

upon which it has asserted entitlements because those interests were extinguished by the

condemnation of the Property by the State of California for highway purposes.

Claimant’s Motion for Partial Summary Judgment presents for summary adjudication only

that issue, i.e., the extinguishment of any and all easement rights under documents recorded in 1901,

1910, and in 1923 by a Judgment of Condemnation and Final Order of Condemnation of Parcel 2

within which Claimant’s Property is located that were entered on February 11, 1983 (Compendium

of Exhibits, Volume 4, Exhibits 6 and 7).

The only facts necessary for summary adjudication of the issue presented by Claimant are the

recorded easement documents upon which PG&E claims entitlement to place transmission lines, and

the subsequent recorded Judgment of Condemnation and Final Order of Condemnation by which the

State of California acquired fee simple absolute ownership of the Property that the State later sold to

Claimant’s predecessor in interest.

No dispute exists regarding those facts.

B. PG&E’s “Counter-Motion for Partial Summary Judgment” is Presented in its

Opposition to Claimant’s Motion for Partial Summary Judgment.

PG&E did not file any separate Counter-Motion for Partial Summary Judgment. Rather, its

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brief Counter-Motion arguments are combined within its Response to Claimant’s Motion.

The basis of PG&E’s Counter-Motion is that, assuming no easement rights based upon any

surviving recorded documents, PG&E is nonetheless entitled to place transmission lines (at some

location and at some height) across Claimant’s Property under a right of prescriptive easement.

Komir notes initially that PG&E’s claim of prescriptive easement is based entirely upon

possession and the rights that it asserts could only be coextensive with whatever course of travel

PG&E occupied during whatever it contends to have been the prescriptive occupation period. Stated

differently, the claim of prescriptive easement does not relate to any recorded document and does not

include any ostensible right contained in any recorded document. This aspect of the analysis requires

a focus on the factual contentions of the parties with Komir’s statement of facts set forth in the

Declaration of Amir Shahmirza in Support of Opposition to Counter-Motion for Summary Judgment

by PG&E.

For delineation and clarification as to the portion of PG&E’s response that appears to

constitute its Counter-Motion, Claimant quotes below the sections that appear to constitute the

Counter-Motion.

In its Introduction, PG&E states:

“Even assuming, arguendo, that the Judgment in Condemnation extinguished PG&E’s

interest established by the recorded easements, PG&E’s continued occupation of the Komir

Property at all times since 1983 is sufficient to establish its right to the PG&E Easements by

prescription. Furthermore, the Transmission Lines have been open and obvious on the Komir

Property since Clamant acquired the property in 2000, such that PG&E is entitled to

summary judgment based on the three-year statute of limitations.” (PG&E Opposition, page

2, lines 19-24).

In its Argument, PG&E states:

“B. Even Assuming the PG&E Easements were Condemned, PG&E’s Continued

Use of the Transmission Lines Supports a Claim of Prescription.

Even assuming, arguendo, that the Judgment in Condemnation somehow extinguished

PG&E’s interest in the recorded easements - which it did not - PG&E’s continued use of the

Transmission Lines on the Komir Property for the past 40 years is more than sufficient to

establish a claim of prescription. A prescriptive right to an easement over the real property of

another may be acquired by a showing of an ‘open, continuous, notorious and peaceable use,

adverse and under a claim of right, for the statutory period of five years.’ Guerra v Packard,

236 Cal.App. 2d 272, 288 (1965). ‘The claim of right must be communicated to the owner of

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the land, or the ...must be so obvious as to constitute implied notice of the averse claim .’ 

Smith v Skrbek, 71 Cal. App. 2d 351, 358 (1945).

It is undisputed that, for well over five years after Claimant purchased the Komir

Property in 2000, the PG&E Easements were open, continuous, notorious, peaceable and

adverse. (See Leatherman Decl. ¶¶ and Exs. F-H; Smith Decl. and Exs. 1 and 2.) The

Transmission Lines are and have always been clearly visible, and thus have provided obvious

notice to Claimant for decades. It is beyond dispute, then that if the recorded PG&E

Easements were in fact condemned in 1983, they nonetheless survive today as prescriptive

easements. Again, summary judge for PG&E is warranted on that basis.” (PG&E

Opposition, page 4, line 25 to page 5, line 12)

These three paragraphs, and the two (2) cases cited therein, constitute the entirety of PG&E’s

“Counter-Motion” for summary judgment regarding the substantive issue of the creation of a

prescriptive easement, or not.

As discussed below, these conclusions ignore the complete fact pattern and are erroneous.

II. THE RELEVANT OPERATIVE FACTS COMPEL A DETERMINATION THAT

(1) PG&E CANNOT, UNDER ANY THEORY, OBTAIN ANY “PRESCRIPTIVE

EASEMENT” FOR ITS CLAIM OF EXCLUSIVE USE OF THE AREA

OCCUPIED BY ITS TRANSMISSION LINES DUE TO NON-PAYMENT OF

REAL PROPERTY TAXES AND

(2) PG&E FAILED TO ESTABLISH THE ELEMENTS OF PRESCRIPTIVE

EASEMENT.

The facts relevant to PG&E’s Counter-Motion, that are stated in evidentiary detail in the

Shahmirza Declaration,1include the following:

1. PG&E’s claim for “prescriptive easement” seeks the exclusive use of the space

occupied by its high voltage transmission lines. The space occupied by those

transmission lines cannot be used by any other person in any manner for any purpose.

2. Only Komir has paid the real property taxes assessed against the Property for the

entire period of Komir’s ownership. PG&E has never paid any real property taxes

assessed against the Property. (See California Civil Code § 325)

3. Komir consented to, and did not object to, PG&E’s occupation of the Property to the

extent and for the transmission lines that existed at the Acquisition Date until 2018.

1

 Komir adopts in this Response the defined terms as stated in the Shahmirza Declaration.

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4. In 2018, PG&E abandoned both the Original Transmission Towers located on the

immediately adjacent northerly boundary of the Property and the Original

Transmission Lines that traversed the Property.

5. In 2018, PG&E sought a Temporary Construction Easement (“TCE”) on the northerly

portion of the Property to “ensure the safety and reliability of the electric transmission

system” through “improvement projects near your [Komir’s] property.” 

6. In the initial TCE document submitted by PG&E to Komir, PG&E included

statements that PG&E held easement rights for ingress, egress and use of the

Property.

7. Komir objected to those recitations and asserted that PG&E held no such rights. 

PG&E thereupon removed those statements and included a provision that the making

of the TCE “shall not be interpreted or construed to mean that Grantor is granting any

easement to Grantee for transmission lines over any portion of the Property.”

8. PG&E and Komir entered into a TCE by which PG&E obtained a temporary right to

occupy a portion of the Property upon payment of the sum of $9,000 per month.

9. At a time when Shahmirza could ascertain the new significantly different towers were

being constructed at different locations that would place new transmission lines at

different locations and heights across the Property, Shahmirza objected by oral 

communications with on-site personnel and by a written cease and desist

communication to PG&E’s Land Agent.

10. PG&E refused to cease and desist and, instead, constructed three huge New

Transmission Towers at new locations and placed New Transmission Lines attached

to the New Transmission Towers at new locations at significantly reduced height

across the Property.

11. The new occupancy that commenced in May, 2018, was not permissive and with

consent as had been the Original Transmission Lines, Komir promptly objected to the

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New Transmission Lines, and upon PG&E’s refusal to cease the installation of the

New Transmission Lines, Komir filed its Complaint for Equitable Relief and

Damages in the San Mateo County Superior Court on November 9, 2018.

(Compendium, Volume 2, Exhibit 3).

12. Komir was not included in PG&E’s list of creditors in its first bankruptcy case that is

described in the Counter-Motion and PG&E did not notify Komir of any deadlines or

procedural requirements. At the date of the filing of PG&E’s first bankruptcy case,

PG&E’s use of the Original Transmission Lines was permissive.

The analysis of the legal issues and conclusions based upon these facts is set forth below.

III. LEGAL ARGUMENT

A. Summary of Legal Conclusions

PG&E holds no prescriptive easement rights, based upon the facts above, for the following

reasons:

1. PG&E holds no prescriptive rights because PG&E claims that it is entitled to the

exclusive use of the area traversed by the New Transmission Lines that is tantamount

to a claim of ownership of an estate by adverse possession that requires payment of

real property taxes by the party claiming the prescriptive easement which PG&E did

not pay.

2. PG&E holds no prescriptive rights because prior to 2018, PG&E did not occupy the

Property under an assertion of hostile, adverse occupancy but rather Claimant

permitted the occupation.

3. PG&E holds no prescriptive rights because any right of way claimed by prescription

is limited to the specific defined location occupied during the period of prescription

and any attempted change or enlargement, which PG&E committed, constitutes an

abandonment of any rights with respect to the area occupied during the pre-change

occupancy.

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4. PG&E is not entitled to maintain any prescriptive easement rights due to any statute

of limitations for three reasons, namely, (a) the trespass was continuing and not

permanent and (b) after the material alteration of the course of the traverse and the

height of the lines Claimant immediately objected and filed suit, and (c) whether or

not Claimant may seek damages for trespass, any bar to that damage claim would not

create an estate in the Property for PG&E but rather the Court may enjoin the

occupancy.

5. PG&E cannot gain any interest in any estate by prescription based upon any

bankruptcy discharge in PG&E’s first bankruptcy case because (a) no claim existed at

the commencement of that case and (b) neither Komir nor Shahmirza received notice

of the filing of that case or of any requirements pertaining thereto.

B. PG&E Holds No Prescriptive Rights to Exclusive Use of the Area Occupied by

the Old Transmission Lines or the New Transmission Lines Because it Failed to

Pay the Real Property Taxes Assessed Against the Property or the Area of

Claimed Exclusive Use.

Courts routinely hold that a claim to the exclusive use of an area of property of another

effectively constitutes an effort to acquire an estate by change in title that requires satisfaction of all

elements of adverse possession, including the payment of real property taxes as required by

California Code of Civil Procedure § 325.

In Hansen v Sandridge Partners, L.P. (2018) 22 CA 5th 1020, the Court discussed the

reoccurring effort of litigants to mischaracterize a claim of adverse possession as being a prescriptive

easement to avoid the requirement of the payment of the real property taxes. 

Initially, the Court in Hansen quoted CCP § 325 as follows:

“In no case shall adverse possession be considered established under the provision of any

section of this code, unless it shall be shown that the land has been occupied and claimed for

the period of five years continuously, and the party or persons, their predecessors and

grantors, have timely paid all state, county, or municipal taxes that have been levied and

assessed upon the land for the period of five years during which the land has been occupied

and claimed.” (Code Civ. Proc., § 325, subd. (b), italics added.) (Emphasis in original)

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In articulating its ruling denying a claim of exclusive prescriptive easement by a claimant

who had not paid the property taxes, the Court in Hansen stated the underlying concept as follows:

“The Hansens also cite to cases involving express easements. (E.g., Pasadena v.

California-Michigan etc. Co. (1941) 17 Cal.2d 576 [110 P.2d 983] (Pasadena); Gray v.

McCormick (2008) 167 Cal.App.4th 1019, 1031 [84 Cal. Rptr. 3d 777]; Blackmore v. Powell

(2007) 150 Cal.App.4th 1593 [59 Cal. Rptr. 3d 527]; City of Los Angeles v. Igna (1962) 208

Cal.App.2d 338 [25 Cal. Rptr. 247]; Ajax Magnolia One Corp. v. So. Cal. Edison Co. (1959)

167 Cal.App.2d 743 [334 P.2d 1053].) But such cases are inapposite because express

easements do not raise the same concerns as prescriptive exclusive easements. Because the

statutory tax requirement applies to prescriptive estates but not prescriptive easements,

it is especially important to maintain the distinction between easements and estates in

the context of prescription. (See Code Civ. Proc., § 325, subd. (b).) That is, if courts

allowed claimants to obtain by prescription a functional estate without satisfying the

statutory requirements of adverse possession, then Code of Civil Procedure section 325,

subdivision (b)'s tax requirement would be nullified. In contrast, that statute's tax

requirement does not apply to express easements (e.g., easement by a written grant), so

permitting express exclusive easements does not create the same statutory nullification

issue that prescriptive exclusive easements do.” (Emphasis supplied)

More colorfully, the Court in Hansen described litigant’s efforts to disguise a claim of

exclusive use that is tantamount to ownership as follows:

“Because of the taxes element, it is more difficult to establish adverse possession than a

prescriptive easement. The reason for the difference in relative difficulty is that a successful

adverse possession claimant obtains ownership of the land (i.e., an estate), while a successful

prescriptive easement claimant merely obtains the right to use the land in a particular way

(i.e., an easement). (Mehdizadeh, supra, 46 Cal.App.4th at p. 1300.)

Unsurprisingly, claimants have often tried to obtain the fruits of adverse possession

under the guise of a prescriptive easement to avoid having to satisfy the tax element.

(Kapner v. Meadowlark Ranch Assn. (2004) 116 Cal.App.4th 1182, 1187 [11 Cal. Rptr. 3d

138].) That is, they seek judgments “employing the nomenclature of easement but ...

creat[ing] the practical equivalent of an estate.” (Raab, supra, 51 Cal.App.3d at p. 877.)

Such judgments “pervert[] the classical distinction in real property law between

ownership and use.” (Silacci, supra, 45 Cal.App.4th at p. 564.) The law prevents this

sophistry with the following rule: If the prescriptive interest sought by a claimant is so

comprehensive as to supply the equivalent of an estate, the claimant must establish the

elements of adverse possession, not those of a prescriptive easement. (Raab, at pp. 876–877.)

In other words, the law simply “does not allow parties who have possessed land to ignore the

statutory requirement for paying taxes by claiming a prescriptive easement.” (Kapner, at p.

1187.)” (Emphasis supplied)

Such is the situation with PG&E’s claim of exclusive use easement.

The Old Transmission Lines and New Transmission Lines are just what the name states, i.e., 

enormous high voltage transmission lines placed in an area of the Property that can only be occupied

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by those lines, i.e., Komir, Inc., cannot use that space, cannot build in it, cannot “share” it, or have

any other use by it. 

Absent payment of taxes as required by CCP § 325, which Komir paid and PG&E did not

pay, PG&E had, and has, no prescriptive easement entitling it to use Komir’s Property for

transmission lines.

The failure of PG&E’s claim on this ground also has the secondary effect of defeating

 all other contentions by PG&E with respect to its holding any prescriptive rights as, without

payment of the taxes, PG&E cannot have any easement rights regardless of the theory upon which

PG&E may contend it would be entitled to obtain prescriptive rights, i.e., without the payment of the

taxes PG&E could not have obtained prescriptive rights based upon any theory. The law simply

forbids the acquisition of the private property of another without proof of all elements of the taking,

including the payment of the real property taxes.

C. No Prescriptive Rights Arise When the Occupancy Is Permissive.

A multitude of cases have consistently held that prescriptive rights may arise upon “open,

notorious and hostile” occupancy by a non-owner of the property, and, conversely, no prescriptive

rights can arise from a permissive use.

The opinion in Smith v Skrbek (1945) 71 CA2d 3351, one of two cases cited by PG&E in its

Counter-Motion, illustrates this point. In Smith, the Court of Appeal affirmed a trial court’s

judgment determining that no prescriptive easement had been established because the occupancy by

the plaintiff was permissive, not hostile

Citing Corpus Juris Secundum, 28 C.J.S. 668, § 18 (2), the Court in Smith discussed the

concept as follows:

"Where a landowner opens up a way on his own land for his own use and convenience, the

mere use thereof by another, under circumstances which do not injure the road nor interfere

with the owner's use of it, will not in the absence of circumstances indicating a claim of right

be considered as adverse, and will not ripen into a prescriptive right no matter how long

continued.

Similarly, the Court in Guerra v Packard (1965) 236 CA2d 272, the other case cited by

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PG&E, stated this principle as follows:

“Defendants' second contention is that plaintiffs proved only a permissive use, which is

insufficient to establish a prescriptive right. The principle of law which defendants state is, of

course, correct. (Los Angeles Brick etc. Co. v.City of Los Angeles, 60 Cal.App.2d 478, 489

[141 P.2d 46]; Jones v. Tierney-Sinclair, 71 Cal.App.2d 366, 371 [162 P.2d 669].)”

Such is the situation with respect to PG&E’s occupation of the Komir’s Property until 2018. 

Komir was not developing the Property during that prior period, the Old Transmission Lines were

not interfering with Komir’s use and could be relocated, so Komir did not object to, but consented

without objection to, the continued traverse of the Old Transmission Lines until PG&E altered them

with the New Transmission Towers and the New Transmission Lines whereupon Komir immediately

objected and filed suit.

Accordingly, the claim of establishment of prescriptive rights after December 18, 2000, and

prior to the events in 2018, also fails due to the permissive occupancy without any recognition of any

legal right in favor of PG&E.

Further, procedurally, with respect to the Counter-Motion for Partial Summary Judgment for

a determination of the existence of prescriptive rights, the Court in Guerra, supra, states the basic

proposition that the determination of whether occupation was hostile or permissive is a question of

fact: 

"The questions whether the use of the easement is adverse and under a claim of right, or

permissive and with the owner's consent, and whether the nature of the use is sufficient to put

the owner on notice, are questions of fact ...”

See also McLear-Gary v Scott, (2018) 25 CA5th 145, 159, stating the same holding.

Summary judgment cannot be granted unless “the movant shows that there is no dispute as to

any material fact.” Federal Rules of Civil Procedure, Rule 56, and Bankruptcy Local Rules of the

Bankruptcy Court for the Northern District of California, Rule 1001-2, 56-1, 56-2, and 56-3. The

existence of a dispute concerning whether occupancy by the Old Transmission Lines was hostile or

permissive is a disputed issue of fact. Summary judgment of the issue with trial to establish the fact

is improper.

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D. The Alteration of a Prescriptive Occupancy to a Different or Greater Area

Breaks the Continuity and Destroys the Claim to Prescriptive Rights.

The rule that alteration of a prescriptive occupancy to a different or greater area breaks the

continuity and destroys the claim to prescriptive rights is also established by the second of the two

cases cited by PG&E, namely, Guerra, supra.

In Guerra, the Court stated this principle as follows:

“ Dealing with the first of these alternatives, we note the California rule with respect

to the effect of deviations in the path of the user upon the establishment of a

prescriptive easement. This rule is stated in Matthiessen v. Grand, 92 Cal.App. 504, 510

[268 P. 675], as follows: ] "The line of travel over a roadway which is claimed by

prescription may not be a shifting course, but must be certain and definite. Slight

deviations from the accustomed route will not defeat an easement, but substantial

changes which break the continuity of the course of travel will destroy the claim to

prescriptive rights." (See Dooling v. Dabel, 82 Cal.App.2d 417, 424 [186 P.2d 183]; 143

A.L.R. 1410; 80 A.L.R.2d 1095.)” (Emphasis supplied)

A more recent case, McLear-Gary, supra, made a similar statement of this rule:

“Prescriptive rights ‘are limited to the uses which were made of the easements during

the prescriptive period. [Citations.] Therefore, no different or greater use can be made

of the easements without defendants' consent.’ (O'Banion v. Borba (1948) 32 Cal.2d 145,

155 [195 P.2d 10].) While the law permits increases in the scope of use of an easement

where ‘the change is one of degree, not kind’ (Cushman v. Davis (1978) 80 Cal.App.3d 731,

735–736 [145 Cal.Rptr. 791]), ‘an actual change in the physical objects passing over the

road’ constitutes a ‘substantial change in the nature of the use and a consequent increase of

burden upon the servient estate ... more than a change in the degree of use.’ (Gaither v.

Gaither (1958) 165 Cal.App.2d 782, 785–786 [332 P.2d 436].)” (Emphasis supplied)

In this instance, PG&E radically changed the course and deviated from its pre-2018 use:

1) PG&E significantly relocated the Old Transmission Towers from a location set back

from Komir’s northerly boundary to the new location of the New Transmission

Towers nearly adjacent to the boundary lines thereby also affecting the location of the

New Transmission Lines.

2) PG&E significantly relocated the Old Transmission Lines so that the New

Transmission Lines traverse the Property at a different location.

3) PG&E significantly lowered the height of the Old Transmission Lines so that the New

Transmission Lines are closer to the ground area for development of the Property.

See Photos attached to Shahmirza email to Scott Brady containing his Cease and Desist

Demand, Exhibit E to the Shahmirza Declaration.

Whatever PG&E may argue were its purported prescriptive rights to traverse the Property

with the Old Transmission Lines prior to 2018, those rights, if any, were extinguished when the New

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Transmission Lines were located in a “different” and “greater” area than had been occupied by the

Old Transmission Lines.

Again, to the extent that PG&E may urge contrary factual contentions regarding the

relocation of the transmission lines, those matters are factual disputes that preclude the grant of the

Counter-Motion for Summary Judgment.

E. PG&E Has Not Acquired Any Indefeasible Prescriptive Rights as a Result of the

Application of Any Statute of Limitations.

PG&E cannot bootstrap itself into a significant prescriptive right to maintain the New

Transmission Lines that service the entire airport and major portions of the San Francisco

Metropolitan area with all the income received as a result of those lines due to any Statute of

Limitations for at least two reasons:

(a) The trespass is continuing so that no Statute of Limitations commenced to run, and

(b) Komir Inc initiated its Lawsuit against PG&E within less than one year after the

creation of the New Transmission Towers and New Transmission Lines.

The analysis of each of these reasons is set forth below.

1. Continuing Trespass - No Statute of Limitations Applicable

Trespasses may be “permanent” or “continuing.”

In Lyle v State of California (2007) 153 CA4th 281 the Court explained the distinctions

between a continuing nuisance or trespass (analyzed coextensively, see Mangini v Aerojet-General

Corp (1991) 230 CA3d 1125, 1148)) as follows:

“Whether a nuisance is continuing or permanent depends ‘on the type of harm suffered.’

(Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 868 [218 Cal.

Rptr. 293, 705 P.2d 866] (Baker).) ‘[P]ermanent nuisances are of a type where ‘ “by one act a

permanent injury is done, [and] damages are assessed once for all.” ’ ‘ (Ibid.) Nuisances

found to be permanent in nature include “solid structures, such as a building encroaching

upon the plaintiff's land [citation], a steam railroad operating over plaintiff's land [citation],

or regrade of a street for a rail system [citation].” (Id. at p. 869, fns. omitted.) For a

permanent nuisance, damages are “complete when the nuisance comes into existence,” and

an action must generally be brought “within three years after the permanent nuisance is

erected.” (Ibid.; but see Gov. Code, § 911.2 [government claim filing period one year].) A

nuisance is not permanent, but continuing, if the nuisance “may be discontinued at any time.”

(Baker, supra, 39 Cal.3d at p. 869.) “The classic example of a continuing nuisance is an

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ongoing or repeated disturbance, such as ... one ... caused by noise, vibration or foul odor.”

(Ibid.) A person harmed by a continuing nuisance “may bring successive actions for damages

until the nuisance is abated.” (Ibid.)”

In Lyle, the Court also noted an important distinction with respect to the basis for a

determination of whether a nuisance is “continuing”:

“In any event, the ‘continuing’ nature of a nuisance refers to the continuing damage caused

by the offensive condition, not to the acts causing the offensive condition to occur.” (Mangini

v. Aerojet-General Corp. (1991) 230 Cal. App. 3d 1125, 1147 [281 Cal. Rptr. 827].)

In Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153 CA4th 583 the Court

engaged in an extensive discussion regarding the distinction between “permanent” and continuing as

well as the differing scope of recoverable damages. The Court explained as follows:

“In contrast, a continuing trespass is an intrusion under circumstances that indicate the

trespass may be discontinued or abated. In these circumstances, damages are assessed for

present and past damages only; prospective damages are not awarded because the trespass

may be discontinued or abated at some time, ending the harm. (Beck, supra, 44 Cal.App.4th

at p. 1216.) Pursuant to Civil Code section 3334, damages allowed for continuing trespass

include the value of the use of the property, reasonable cost of repair or restoration to the

property's original condition, and the costs of recovering possession. Continuing trespasses

are essentially a series of successive injuries, and the statute of limitations begins anew with

each injury. In order to recover for all harm inflicted by a continuing trespass, the plaintiff is

required to bring periodic successive actions. (Baker v. Burbank-Glendale-Pasadena Airport

Authority (1985) 39 Cal.3d 862, 869 [218 Cal. Rptr. 293, 705 P.2d 866] (Baker).) (Emphasis

supplied)

The Court in Starrah then noted the consequences attributable to the difficult factual

distinctions:

“As aptly stated in Beck: ‘These distinctions can create particular problems for the parties.

For example, if the defendant is willing and able to abate the [trespass] it may be unfair to

award prospective damages on the presumption that the [trespass] will continue. On the other

hand, if it appears improbable that the [trespass] can or will be abated, or the plaintiff is

willing that the [trespass] continue provided compensation is paid for past and prospective

injuries, then it may be unreasonable to leave the plaintiff to the troublesome remedy of

successive actions. And a too rigid distinction between permanent and continuing [trespass]

may constitute a trap for the unwary plaintiff who guesses wrong.”

The Court concluded its analysis with the statement of policy:

“For these reasons it is held that in doubtful cases the plaintiff has an election to treat a

[trespass] as permanent or continuing. [Citations.]’ (Beck, supra, 44 Cal.App.4th at p.

1217.)” (Emphasis supplied)

With respect to the Counter-Motion for Summary Judgment, no claim for trespass is barred

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by the Statute of Limitations for the following reasons:

The trespass (as characterized by PG&E) that PG&E claims arose in or after December,

2000, was continuing, not permanent as reflected by the facts that:

(a) The damage has been continuing per Lyle, supra.

(b) The intrusion does not have a permanence such as the “solid structures, such as a

building encroaching upon the plaintiff's land” described in Lyle.

(c) PG&E proved that the Old Transmission Lines were movable and abatable as PG&E,

in fact, moved not only the lines but created the New Transmission Towers (see

admission in Exhibit G to the Declaration of Roger Leatherman admitting the

removal and relocation with a date of April, 2018).2

(d) Komir elects to treat the trespass as continuing per Starrh.

2. Timely Filing of Lawsuit - Commenced within Less Than One Year

With respect to the trespass by the New Transmission Lines as mounted on the New

Transmission Poles that were moved immediately adjacent to Komir’s Property, Komir objected onsite to the persons performing the relocation, objected in writing to PG&E’s Land Surveyor, and

commenced suit within months, i.e., well within the three years provided by CCP § 338(b).

3. The Trespass Claim Is Distinguishable from the Acquisition of an Estate

in Property.

As discussed in the sections above concerning the nature of prescriptive easements, a

prescriptive right would maintain the encroachment. If the encroacher cannot establish a prescriptive

right to occupancy, then the Court may grant injunctive relief requiring the unauthorized encroacher

to vacate which remedy is intrinsic to the prescriptive rights analysis independent of the viability of a

damages claim for trespass.

F. PG&E Has Not Acquired Any Indefeasible Prescriptive Rights as a Result of Its

First Bankruptcy Case In Which No Notice Was Sent to Komir or Shahmirza.

2 The relevant portion of the exhibit that is difficult to read is immediately above the red font

word “Entered” that is imprinted in the filing data.”

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As demonstrated by the Court’s file in the First Bankruptcy Case, and by the Declaration,

PG&E did not list Komir, Shahmirza, or Shahmirza’s predecessors Neil and Melanie Hildebrand as

creditors or other parties in interest in that bankruptcy case. See Jacobson Declaration.

Claims, assuming any claim existed with respect to the Property at the commencement of the

First Bankruptcy case which is a disputed factual issue, are not discharged unless the Debtor

provides notice to the Claimant of the filing of the case and the requirements pertaining thereto. (11

USC § 523(a)(3).

Significantly, also, the Counter-Motion notes that Komir acquired the Property on December

18, 2000, “a few months before the filing of PG&E’s first chapter 11 case” and then states that “to

the extent that komir had a claim for trespass against PG&E prior to that bankruptcy case, it was

discharged ...” The time period to which PG&E refers was “a few months” with the purported

discharge affecting Komir “to the extent that komir had a claim for trespass” while any “trespass”

continued long thereafter. See discussion above regarding permissive occupancy negating any

prescriptive easement.

Conclusion

Since PG&E claims an exclusive prescriptive right to the use of the space occupied by its

transmission lines, PG&E cannot establish any entitlement to such right unless it can prove that it

paid the real property taxes assessed against the Property. Civil Code Section 325(b).

PG&E never paid any real property taxes assessed against the Property. Komir paid all the

real property taxes.

PG&E’s use of the space occupied by the Original Transmission Lines was permissive which

precludes the establishment of any prescriptive rights.

In 2018, PG&E abandoned the space occupied by the Original Transmission Lines and

installed new and materially different New Transmission Towers that caused the relocation of the

New Transmission Lines thereby initiating a new, non-permissive use of a different portion of the

Property. Komir timely objected and timely filed suit.

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The trespass, if such occurred as argued by PG&E prior to 2018, was continuing and did not

give rise to any statute of limitation issue. In any event, whatever effect the passage of time might

have on a damage claim, no statute of limitations bar to a damage claim would allow PG&E to create

for itself an interest in an estate.

No trespass claim existed at the commencement of the first bankruptcy case, and PG&E did

not include Komir, its predecessor, or Shahmirza in its list of creditors and did not give notice to any

of them.

While the failure to pay taxes constitutes a complete bar to any relief in favor of PG&E,

factual issues exist with respect to the other contentions asserted by PG&E such that summary

judgment cannot be granted as requested by the Counter-Motion.

Respectfully submitted.

Dated: April 3, 2023 COHEN AND JACOBSON, LLP

By: /s/ Lawrence A. Jacobson 

 Attorneys for Claimant

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