Filed 1/26/24 Swenson v. Close CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

MARK R. SWENSON et al.,

Plaintiffs, Cross-defendants and 

Appellants,

v.

CAROL W. CLOSE et al.,

Defendants, Cross-complainants 

and Respondents.

 D081067

 (Super. Ct. No. 37-2020-

00020652-CU-OR-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, 

Joel R. Wohlfeil, Judge. Reversed in part and affirmed in part.

Walker Law Office and Charles F. Walker, for Plaintiffs, Crossdefendants and Appellants.

Law Office of Danny R. McDonald and Danny R. McDonald, for 

Defendants, Cross-complainants and Respondents.

INTRODUCTION

This appeal stems from a dispute between adjoining landowners 

regarding the use of a driveway easement by respondents Carol and Charles

Close (together, the Closes). The grant deed describing the easement 
2

provides for “an easement and right of way for private driveway purposes 

over and along and across that portion of Lot 2 of Pine Manor which lies 

westerly of the northerly prolongation of the easterly line of Lot 1 of said Pine 

Manor” (the easement).1 The Swensons objected to the Closes using the 

easement for parking, basketball games, neighborhood parties, placement of 

personal property, and watching fireworks. 

The Swensons sued for quiet title; declaratory and injunctive relief;

trespass and ejectment; and private nuisance and abatement of the nuisance. 

The Closes cross-complained for declaratory relief and prescriptive 

easement.2 Following a one-day bench trial, the trial court issued a 

statement of decision (SOD) interpreting the easement as affording the 

Closes “a limited, non-exclusive easement to park their cars on the driveway 

in a reasonable manner so as to avoid obstruction of [the Swensons’] access to 

their property.” The court further construed the easement as authorizing 

pedestrian traffic but declined to make a specific finding as to placing 

personal property on the easement. 

1 Lot 1 is owned by the Closes. Lot 2, which includes the driveway over 

which the easement runs, is owned by appellants Mark and Valerie Swenson

(together, the Swensons). 

2 The first amended cross-complaint also included a cause of action for 

adverse possession. Argument by counsel for the Swensons at trial suggests 

that they demurred to the adverse possession cause of action on the grounds 

that the Closes could not demonstrate adverse possession because they had 

not paid taxes on the property. Although the record does not contain the 

briefing and court rulings reflecting the subsequent proceedings, Carol 

admitted in response to an interrogatory that she was “no longer seeking fee 

simple title and has conceded this cause of action should be deleted from the 

[first amended cross-complaint] in her Response to Demurrer.” 
3

On appeal, the Swensons contend the trial court erred as a matter of 

law in interpreting the easement. We agree and, therefore, reverse the 

judgment3 as to the Swensons’ quiet title cause of action and requests for 

declaratory and injunctive relief. We otherwise affirm the judgment. 

FACTUAL AND PROCEDURAL BACKGROUND

A. Trial Evidence

In 1965, the Pine family sold the property described as Lot 2 of Pine 

Manor to the Willet Land Company. The deed conveying the property 

included a provision “reserving an easement and right-of-way for private 

driveway purposes over, along, and across that portion of said Lot 2 which 

lies westerly of the northerly prolongation of the easterly line of Lot 1 of said 

PINE MANOR.” A few months later, the Boland family purchased Lot 2 from 

the Willet Land Company. The Swensons purchased Lot 2 from the Bolands 

in 2014. 

3 Statements of decision generally are not appealable. (Alan v. American

Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 901.) However, “[r]eviewing 

courts have discretion to treat statements of decision as appealable when 

they must, as when a statement of decision is signed and filed and does, in 

fact, constitute the court’s final decision on the merits.” (Ibid.) Because the 

SOD in this case was signed and filed; an entry of the same date on the 

register of actions states: “Matter decided;” and it does not appear any 

subsequent orders or judgments issued; we conclude the trial court intended 

the SOD to be its final decision in the case and exercise our discretion to treat 

it as such. Accordingly, we will refer to the SOD as the “judgment” in this 

case. (See Cal. Rules of Court, 8.104(e) [including appealable orders in the 

category of judgments for purposes of determining the timeliness of a 

judgment].)
4

Meanwhile, in 1966, the Malanga family purchased Lot 1 and the 

easement described ante from the Pines.4 In 2011, the Closes purchased 

Lot 1 and the easement from the Malangas. 

Lot 2 is shaped like a flag on a flagpole, with the driveway as the pole 

leading up to the Swenson home. The Swensons’ house is at a higher 

elevation than the Closes’ on the same side of the driveway and looks out over 

a coastal area and bay. Both homes have garages that open to the driveway, 

with the Closes’ garage located between the driveway and the home on the 

way up the slope to the Swenson home. The easement, which is 

approximately 20 feet wide, extends along the property line of Lot 1. There is 

a gap of roughly seven-and-a-half feet between the easement and the Closes’ 

garage door. 

The Closes have never parked their cars in their garage. Instead, they 

park them by the garage door, with the vehicles protruding into the 

easement. Carol testified that the only access to her house is via the 

easement because the driveway also leads to a sidewalk that extends from 

the driveway to her front door. She explained that it is impossible to walk 

directly up to her front door from the street because the hill is steep, there is 

no stairway, and no one could get through the landscaping she referred to as 

“the jungle” in her front yard. In the Closes’ view, the parking area within 

the easement that is in front of the garage is exclusively for their use as well 

as for their friends and visitors. They acknowledge having parked their cars 

there in a hostile, continuous, exclusive, open, and notorious manner 

since 2011. 

4 The language of the easement conveyed in this grant deed varied 

slightly, and in a nonsubstantive manner, from the original easement 

reservation and reflects the language subsequently used in the sale to the 

Closes. 
5

Valerie Swenson testified that she initially did not say anything about 

the cars in an effort to be a good neighbor and indicated to Carol her 

permission to park outside the garage by waving and smiling when she saw 

Carol parking her car. But once she noticed that three cars were being 

parked there and that a red Subaru had not been moved in months, was 

covered with cobwebs and weeds, had expired plates, and was parked several 

feet into the easement, she began to become unhappy. Mark Swenson said 

the Closes regularly parked two to three cars by their garage, encroaching 

four to eight feet into the easement, but agreed that they initially granted the 

Closes “passive permission by waiving and acknowledging their presence 

without interference.”5 

On April 14, 2020, Mark sent a letter to Carol stating that the 

easement on the driveway was for ingress and egress but did not allow the 

Closes to park their vehicles on the driveway. He indicated that they 

considered the Closes to be trespassing in parking on the driveway. The

Swensons also posted a “Private Property. No Trespassing” sign. The Closes 

responded by sending a letter from their attorney indicating that they 

believed the only restriction on their use of the easement was that they could 

not completely prevent ingress and egress by the Swensons. 

B. Statement of Decision

After the trial, the trial court issued its SOD. It indicated that, in 

interpreting the easement and resolving the dispute, it “considered the 

entirety of the clause while striving to ‘make sense’ of all of the words ‘when 

taken together’ (CACI 317) and . . . considered ‘how the parties acted after 

(the deeds were) created but before any disagreement between the parties 

arose’ (CACI 318).” 

5 The Closes disputed these assertions of “permission.” 
6

As to the Swensons’ quiet title claim, the trial court noted that the 

Swensons sought in their first amended complaint a ruling that “parking is

not allowed, [and] placement of personal property or pedestrian access is not

allowed within the subject easement unless express written permission is

given to Lot 1 occupants or others by the duly recorded owners or their 

authorized agents of Lot 2.” In response, the court concluded as follows: 

“The Court agrees in part and disagrees in part with [the 

Swensons]. The Court agrees that the driveway easement is not 

a parking lot where [the Closes] may park car(s) interminably 

which approach, if not become, a blight. This finding is 

consistent with the portion of the easement which limits [the 

Closes’] use to ‘purposes over, along and across’ the driveway. 

However, the Court disagrees with [the Swensons] that [the 

Closes] parking their cars on the driveway at or near the garage 

to their house is not incident to and consistent with the ‘purposes’

of a private driveway. Under a reasonable construction of the 

easement, [the Closes] possess a limited, non-exclusive easement 

to park their cars on the driveway in a reasonable manner so as 

to avoid obstruction of [the Swensons’] access to their property.

“Pedestrian access between Galveston Street and [the Closes’]

residence is also incident to and consistent with ‘purposes over, 

along and across’ the driveway.

“Finally, the Court declines to make a specific finding on the 

‘placement of personal property’ on the driveway. Though the 

examples cited at trial appeared to be a shade tent (Exh’s ‘21-

22’), a worker in a truck (Exh ‘20’) and a basketball court, [The 

Closes] explained that these were transitory. [The Closes’]

explanation struck the Court as reasonable. [The Closes] are

admonished that their use of the driveway for the ‘placement of 

personal property’ must be exercised in a reasonable manner so 

as to avoid obstruction of [the Swensons’] access to their 

property.” 

The court also incorporated this finding in response to the Swensons’ 

declaratory relief claim. 
7

In addressing the Swensons’ request for an injunction, the trial court 

indicated that it was “not persuaded that [the Swensons] have satisfied their 

burden of demonstrating that the balance of harms weighs in favor of

injunctive relief at this time or, given the Court’s above finding not to accept 

their interpretation of the driveway easement, that they are (or will be) the

prevailing parties.” 

With regard to the Swenson’s trespass claim, the court stated that, in 

view of its interpretation of the easement, it found that the Swensons had 

“not carried their burden that [they] did not give permission for [the Closes’]

entry or that [the Closes] exceeded [the Swensons’] permission.” 

Additionally, while it agreed with the Swensons that the Closes “may not 

interminably park car(s) on the driveway, which become a blight,” the court 

was “not persuaded that [the Closes] have disrupted [the Swensons’] ‘views of 

the bay and ocean.’ ” 

Finally, the trial court rejected the Swenson’s private nuisance claim, 

finding they had not carried their burden of showing the Closes created a 

condition that was harmful to their health, was indecent or offensive to their 

senses, obstructed their free use of property, or was potentially dangerous.

Turning to the Closes’ cross-claims, the court incorporated its findings 

on the Swensons’ quiet title and declaratory relief claims in addressing the 

Closes’ declaratory relief cross-claim. It further concluded that the Closes 

had “failed to carry their burden that, beyond the limited, non-exclusive

easement they already possess, [the Closes]6 acquired a prescriptive 

easement.” 

6 The court found that “Plaintiffs” had not acquired a prescriptive 

easement, but read in context, we presume the court meant to refer to the 

Closes. 
8

DISCUSSION

I.

The Trial Court Erred in Interpreting the Easement

The Swensons contend the trial court erred in construing the easement 

as allowing for permanent parking by the Closes. We agree.

A. Legal Principles

An easement is a limited privilege to use another’s land but does not 

create an ownership interest. (Kazi v. State Farm Fire and Casualty Co.

(2001) 24 Cal.4th 871, 881; McBride v. Smith (2018) 18 Cal.App.5th 1160, 

1174.) The existence of an easement creates two tenements: the dominant 

tenement is held by the individuals who hold the right to go over another’s 

land (e.g., here, the Closes); the servient tenement is held by the owners

whose land is traversed (e.g., here, the Swensons). (See Civ. Code, 

§ 803; Kazi, at p. 881.)

When an easement arises from an express grant, the use of the 

easement is determined by the terms of the instrument creating it. (Civ. 

Code, § 806; City of Pasadena v. California-Michigan Land & Water Co.

(1941) 17 Cal.2d 576, 579 (Pasadena).) “[O]nly those interests expressed in 

the grant and those necessarily incident thereto pass from the owner of the 

fee. The general rule is clearly established that, despite the granting of an 

easement, the owner of the servient tenement may make any use of the land 

that does not interfere unreasonably with the easement.” (Pasadena, at 

p. 579; Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, 702.) 

Meanwhile, “[t]he owner of the dominant tenement must use his or her 

easements and rights in such a way as to impose as slight a burden as 

possible on the servient tenement.” (Scruby, at p. 702.) “Every incident of 

ownership not inconsistent with the easement and the enjoyment of the same 
9

is reserved to the owner of the servient estate.” (Ibid.; Dolske v. Gormley

(1962) 58 Cal.2d 513, 519 (Dolske).)

An express easement is interpreted in the same manner as a contract. 

(Civ. Code, § 1066; Pear v. City and County of San Francisco (2021) 

67 Cal.App.5th 61, 70; Kerr Land & Timber Co. v. Emmerson (1965) 

233 Cal.App.2d 200, 219.) The primary objective is to ascertain and carry out 

the parties’ intentions. (See City of Manhattan Beach v. Superior Court

(1996) 13 Cal.4th 232, 238 (Manhattan Beach); Palos Verdes Corp. v. Housing 

Authority of Los Angeles County (1962) 202 Cal.App.2d 827, 835 (Palos 

Verdes) [“The primary object of the interpretation of a deed is to ascertain 

and give effect to the intention of the parties, especially that of the grantor,

as it existed at the time of the execution of the instrument” (italics added)].)

“ ‘The intention of the parties to a grant is to be gathered, if possible, from 

the instrument itself and is determined by a proper construction of the 

language used, rather than by resorting to extrinsic evidence.’ [Citation.]”

(Norris v. State ex rel. Dept. of Public Works (1968) 261 Cal.App.2d 41, 46; see 

also Pulliam v. Bennett (1880) 55 Cal. 368, 371.) “If the language of a deed is 

plain, certain and unambiguous, neither parol evidence nor surrounding facts 

and circumstances will be considered to add to, detract from or vary its 

terms . . . .” (Palos Verdes, at p. 836; Civ. Code, § 1638 [“The language of a 

contract is to govern its interpretation, if the language is clear and explicit, 

and does not involve an absurdity”].) “Moreover, ‘ “language in a contract 

must be construed in the context of that instrument as a whole, and in the 

circumstances of that case, and cannot be found to be ambiguous in the 

abstract.” ’ ” (La Jolla Beach & Tennis Club, Inc. v. Industrial Indemnity Co.

(1994) 9 Cal.4th 27, 42.)
10

On appeal, the reviewing court is not bound by the trial court’s 

construction of the deed if said construction was “ ‘ “based solely upon the 

terms of the written instrument without the aid of evidence [citations], where 

there is no conflict in the evidence [citations], or a determination has been 

made upon incompetent evidence [citation].” [Citations.]’ ” (Manhattan 

Beach, supra, 13 Cal.4th at p. 238.) “In such circumstances, the appellate 

court exercises its independent judgment as to the construction of the 

instrument at issue.” (Machado v. Southern Pacific Transportation Co.

(1991) 233 Cal.App.3d 347, 352 (Machado).) 

B. Analysis

In interpreting the deed language granting the easement, the trial 

court stated that it “considered ‘how the parties acted after (the deeds were) 

created before any disagreement between the parties arose’ ” pursuant to 

CACI No. 318. We find no authority applying this instruction to 

interpretation of a deed or other instrument where, as here, the language was 

not drafted by the parties to the dispute. As the Supreme Court explained in 

Crestview Cemetery Association v. Dieden (1960) 54 Cal.2d 744, 752–753, 

“[t]hat the actions of the parties should be used as a reliable means of 

interpreting an ambiguous contract is, of course, well settled in our law”

(italics added). This is because “ ‘[t]he acts of the parties under the contract 

afford one of the most reliable means of arriving at their intention . . . .’ ” 

(Id. at p. 753, italics added.) Because neither the Swensons nor the Closes 

had any say in the language of the easement drafted decades before, we 

conclude it was improper for the trial court to consider their actions in 

construing the easement language. (C.f. Palos Verdes, supra, 202 Cal.App.2d 

at p. 835 [relying on the parties’ intentions at the time the instrument was 

executed in interpreting the deed].)
11

Additionally, nothing in the trial court’s SOD indicates that it found 

the language ambiguous. Rather, the trial court based its conclusion that the

Closes “possess a limited, non-exclusive easement to park their cars . . . on 

the driveway in a reasonable manner so as to avoid obstruction of [the 

Swensons’] access to their property” on “a reasonable construction of the 

easement.” When the instrument is unambiguous, the court should not 

consider extrinsic evidence or surrounding facts and circumstances in 

interpreting its language. (Palos Verdes, supra, 202 Cal.App.2d at p. 836; 

Civ. Code, § 1638.)

While we appreciate the trial court’s effort to reach a pragmatic 

solution, the court’s approach left both parties with more questions than 

answers. Furthermore, calling it a “non-exclusive” easement does not make 

it non-exclusive in reality. If the Closes routinely park cars on the easement, 

then the Swensons cannot use the property under the cars. When, as a 

practical matter, the true owners are completely prohibited from using their 

land, the easement is exclusive. (Silacci v. Abramson (1996) 45 Cal.App.4th 

558, 564 [concluding that “the notion of an exclusive prescriptive 

easement . . . has no application to a simple backyard dispute”].) Generally, 

an exclusive easement is only found to exist where the language of the 

instrument “clearly expresse[d] an intention that the use of the easement 

area be exclusive” (Gray v. McCormick (2008) 167 Cal.App.4th 1019, 1032), 

which is not the case here. There also is no indication that the trial court 
12

exercised its equitable powers in granting the Closes a right to park on the 

easement.7

Because we find no evidence the trial court made any factual 

determinations in construing the language of the easement, except to the 

extent it improperly considered the parties’ subsequent actions under CACI 

No. 318, the proper interpretation of the easement presents a question of law 

we review de novo. (Machado, supra, 233 Cal.App.3d at p. 352.) Here, we 

find the language granting the easement to be clear and unambiguous. The 

language of the grant provided for “an easement and right of way for private 

driveway purposes over and along and across that portion of Lot 2 of Pine 

Manor which lies westerly of the northerly prolongation of the easterly line of 

Lot 1 of said Pine Manor.” The use of the terms “over and along and across” 

suggests movement from one place to another. In this case, the logical start 

and end points are the street and the Closes’ garage. Consistent with this, 

“driveway” is commonly defined as “a private road giving access from a public 

way to a building on abutting grounds.” (Merriam-Webster Collegiate Dict. 

(11th ed., 2003) p. 382, col. 1.) While the Closes attempt to read “private 

driveway purposes” as an independent term, “[t]he whole of a contract is to be 

taken together, so as to give effect to every part, if reasonably practicable, 

each clause helping to interpret the other.” (Civ. Code, § 1641.) Doing so 

7 We also find puzzling the trial court’s limitation that the Closes may 

park their cars on the driveway so long as they do not obstruct the Swensons’ 

access to their property. This appears to imply that so long as the Swensons 

can drive past the Closes’ vehicles to reach their home, the Closes’ 

encroachment is reasonable. But this would only be appropriate if the 

Swensons had an easement entitling them to unobstructed passage across the 

Closes’ land. Where, as here, the Swensons own the land, consistent or 

prolonged parking on their driveway in and of itself deprives them of their 

access to that portion of their property. 
13

here suggests nothing more than a right-of-way for unobstructed ingress and 

egress for a vehicle to drive “over and along and across” the easement

between the street and the garage. Parking, as a stationary activity, is not 

included.

This construction is consistent with the Supreme Court’s interpretation 

of a similar driveway easement in Dolske, supra, 58 Cal.2d 513. There, the 

dominant tenement included “ ‘the right to use as a driveway in common with 

grantor’ ” a strip of land along the edge of the lot. (Id. at p. 516.) After the 

grant was made, a house was built on the lot that extended onto the grantor’s 

property in several places. (Ibid.) Dolske subsequently acquired the house 

and “ ‘[a]lso [the] right to use as a driveway’ the 10 by 128-foot strip adjoining 

her easterly property line, ‘Together with the tenements, hereditaments, and 

appurtenances whatsoever to the same belonging or in anywise 

appertaining.’ ” (Ibid.) Gormely then acquired the grantor’s property and 

constructed a fence along the property line with breaks to accommodate

Dolske’s encroachments and garage. (Id. at p. 517.)

Dolske sued to enjoin Gormley from obstructing the driveway with the 

fence, and Gormely cross-complained seeking removal of the encroaching 

portions of Dolske’s home. (Dolske, supra, 58 Cal.2d at p. 517.) Following a 

trial, the court concluded the fence did not unreasonably interfere with 

Dolske’s enjoyment of the driveway easement and decreed that Dolske must 

remove all encroachments. (Id. at pp. 517–518.) On appeal, Dolske 

contended she had the right to use the driveway for pedestrian access as well 

as general maintenance of that side of her property. (Id. at p. 519.) In 

rejecting this interpretation, the high court noted that “ ‘Driveway’ is defined 

in Webster’s New World Dictionary (1951) page 443, as ‘a path leading from a 

garage or house to the street, used especially by automobiles.’ ” (Ibid.) 
14

Although acknowledging that driveways “are commonly used for multifarious 

additional purposes,” the court emphasized that “ ‘The law is jealous of the 

claim of an easement . . . and likewise of the extent of the rights claimed 

under an instrument granting an easement. The rule is that every incident 

of ownership not inconsistent with the easement and the enjoyment of the 

same, is reserved to the grantor.’ ” (Ibid.) For this reason, the court found it 

appropriate to narrowly construe the term “driveway” and affirm the trial 

court’s interpretation of the easement as conveying only “a bare right to use 

the easement way for ingress and egress of vehicular traffic.” (Id. at pp. 519, 

521.) In so doing, the court further noted that the right to pedestrian and 

maintenance access were not part of using land as a driveway. (Id. at p. 519.)

Similarly, the plain meaning of “an easement and right of way for 

private driveway purposes over and along and across that portion of 

Lot 2 . . .” implies nothing more than a way for ingress and egress of 

vehicular traffic between the street and the garage of Lot 1. Given the 

similarity of the facts of this case to those of the Dolske case, we also see no 

reason to read in an allowance for pedestrian access where none is expressly 

included in the easement.8 (See Pasadena, supra, 17 Cal.2d at p. 579

[“Where the easement is founded upon a grant, as here, only those interests 

expressed in the grant and those necessarily incident thereto pass from the 

owner of the fee”].) The Closes also have not cited any authority interpreting 

driveway purposes as including pedestrian use. Rather, they rely only on 

Streets and Highways Code section 5870, subdivision (b) which defines

8 The Swensons’ briefing makes somewhat contradictory statements 

regarding whether they challenge the trial court’s finding that the easement 

allows pedestrian access. But because they appear to dispute the trial court’s 

conclusion that unrestricted pedestrian use by the dominant tenement is 

allowed, we interpret the easement de novo on this issue as well.
15

“Driveway” as “a paved portion of a public street providing an unobstructed 

passage from the roadway to an offstreet area used for driving, servicing, 

parking, or otherwise accommodating motor vehicles.” This definition 

appears to apply only to public, not private, driveways and does not include 

pedestrian uses. 

Although driveways often are used for many of the additional purposes 

the Closes assert (e.g., parking, sports, storage, and entertainment), the 

Closes did not purchase fee ownership in a driveway. Further, they choose 

not to use their garage for parking,9 and they opted not to install a walkway 

from the street through “the jungle” to their front door, but those choices do 

not justify depriving the Swensons of their right to use their own land. The

Closes have only a right-of-way over a driveway and, because “the law is 

jealous of the claim of an easement,” we must construe unambiguous 

easement language as reserving to the servient tenement owners, here the 

Swensons, “every incident of ownership not inconsistent with the easement 

and the enjoyment of the same.” (Dolske, supra, 58 Cal.2d at p. 519.)10

We therefore conclude the trial court erred in interpreting the 

easement as including parking or pedestrian access. 

9 Carol stated in a request for admission that her garage was “used only 

for storage and tools, cleaning supplies, laundry, [and] hanging up laundry.” 

She further admitted that the garage door opener ran out of batteries, and 

she never replaced them or used the garage door opener. 

10 Although the trial court declined to make a specific finding as to 

whether the easement allowed the Closes to place personal property on the 

easement, the placement of personal items on the driveway (beyond the need 

to briefly put something down incident to driving between the garage and the 

street) would be inconsistent with our interpretation of the easement. 
16

II.

The Trial Court Abused Its Discretion in Denying Injunctive Relief

If we construe the easement in their favor, the Swensons contend the 

trial court’s denial of injunctive relief must be reversed because the refusal 

was predicated on the court’s finding that the Closes had not violated the 

easement. They further argue that, without an injunction, the Closes will 

continue to park on their property and seek to expand their easement by 

prescription. 

We review a decision denying a request for an injunction for abuse of 

discretion. (See Salazar v. Eastin (1995) 9 Cal.4th 836, 849–850 (Salazar)

[“ ‘ “It is a rule so universally followed and so often stated as to need only to 

be referred to that granting, denial, dissolving or refusing to dissolve a 

permanent or preliminary injunction rests in the sound discretion of the trial 

court upon a consideration of all the particular circumstances of each 

individual case” ’ and ‘will not be modified or dissolved on appeal except for 

an abuse of discretion’ ”].) “The exercise of discretion must be supported by 

the evidence and, ‘to the extent the trial court had to review the evidence to 

resolve disputed factual issues, and draw inferences from the presented facts, 

[we] review such factual findings under a substantial evidence standard.’ ” 

(Horsford v. Board of Trustees of California State University (2005) 132 

Cal.App.4th 359, 390 (Horsford).)

In this case, the trial court said it considered “two interrelated 

questions” in evaluating the injunction11 request: (1) whether the Swensons 

11 The trial court referred to it as a preliminary injunction, but the 

Swensons request only an injunction in their first amended complaint. Given 

that the proceeding was the final trial of the matter, it does not appear the 

Swensons were seeking only a preliminary ruling pending a later proceeding.
17

were likely to suffer greater injury from a denial of the injunction than the 

Closes were likely to suffer from its grant; and (2) whether there was a

reasonable probability that the Swensons would prevail on the merits.

Ultimately, the trial court indicated that it was “not persuaded that [the 

Swensons] have satisfied their burden of demonstrating that the balance of 

harms weighs in favor of injunctive relief at this time or, given the Court’s 

above finding not to accept their interpretation of the driveway easement, 

that they are (or will be) the prevailing parties.”

We conclude the trial court’s decision must be reversed because its 

conclusion as to both elements was based upon its incorrect interpretation of 

the easement. Under our construction of the easement, the Swensons are the 

prevailing parties, so the trial court’s determination to the contrary was 

error. Likewise, the trial court’s balancing of the harms is not supported by 

substantial evidence because the harms would be weighed quite differently 

when the Closes are viewed as routinely exceeding the scope of their rights 

under the easement.12 Accordingly, in view of our interpretation of the 

easement, the trial court’s exercise of discretion was not based on substantial 

evidence. (Horsford, supra, 132 Cal.App.4th at p. 390.) We therefore 

conclude the trial court abused its discretion in denying the Swensons’ 

request for injunctive relief. (Salazar, supra, 9 Cal.4th at pp. 849–850.)

The question then is whether we may decide the injunction issue on the 

record before us or whether remand for development of the record is 

necessary. “ ‘A permanent injunction is a determination on the merits that a 

plaintiff has prevailed on a cause of action . . . against a defendant and that 

12 And again, such a weighing is applicable to the decision whether to 

grant a preliminary injunction, not a permanent injunction. (See Robbins v. 

Superior Court (1985) 38 Cal.3d 199, 206.)
18

equitable relief is appropriate.’ ” (Horsford, supra, 132 Cal.App.4th at 

p. 390.) “It is well settled that an injunction is an equitable remedy available 

generally in the protection or to prevent the invasion of a legal right. In a 

case such as the one before us the right and its actual or threatened invasion 

must be shown.” (Meridian, Ltd., v. San Francisco (1939) 13 Cal.2d 424, 

447.) A court may grant an injunction when, among other circumstances, 

“it appears by the complaint that the plaintiff is entitled to the relief 

demanded, and the relief, or any part thereof, consists in restraining the 

commission or continuance of the act complained of, either for a limited 

period or perpetually” or “[w]hen it appears, during the litigation, that a 

party to the action is doing, or threatens, or is about to do, or is procuring or 

suffering to be done, some act in violation of the rights of another party to the 

action respecting the subject of the action, and tending to render the 

judgment ineffectual.” (Code Civ. Proc., § 526, subd. (a)(1) & (3).) Indeed, an 

injunction against continuing trespass to land is proper, even in the absence 

of a showing of substantial damages, where the ongoing invasion threatens 

creation of a prescriptive right and repetitive suits for damages would not 

provide an adequate remedy. (Mendelson v. McCabe (1904) 144 Cal. 230, 

232–233; Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1352 [confirming 

continued applicability of injunctive relief principles set forth in Mendelson]; 

see also City of South Pasadena v. Department of Transportation (1994) 29 

Cal.App.4th 1280, 1293 [a permanent injunction is warranted when the party 

seeking relief demonstrates the inadequacy of other legal remedies].)

Here, we have established that the Swensons have a legal right to 

unobstructed use of the entirety of the driveway, limited only by the Closes’ 

right to pass “over and along and across it” in a vehicle to reach their garage

or the street. The Closes’ pleadings, briefing, and statements at trial indicate 
19

they attempted to adversely possess part of the easement and continue to 

assert a prescriptive right to exclusively use an undefined portion of the 

driveway. Thus, it is apparent that, unless enjoined, nothing prevents the 

Closes from continuing to park on and otherwise occupy some portion of the 

easement in front of their driveway in an open, notorious, continuous, and 

adverse manner. Therefore, entering judgment in the Swensons’ favor is 

unlikely to provide effective relief unless accompanied by an injunction. 

(Code Civ. Proc., § 526, subd. (a)(3).) 

It is not clear from the record why the Closes do not park in their 

garage, but we find no evidence indicating it could not be used for vehicle 

parking. As for pedestrian traffic, Carol testified that she did not construct 

steps up from the street to the front door because she did not have the money 

to do it and did not want to do so. While neither the parties nor the trial 

court considered whether an equitable easement was warranted under these 

circumstances, rightly so because it is plain from the record that the 

encroachments by the Closes were not innocent (Hansen v. Sandridge 

Partners, L.P. (2018) 22 Cal.App.5th 1020, 1027), it is not clear whether entry 

of an injunction of immediate effect would wholly deprive the Closes of safe 

access to their home. Accordingly, we remand for consideration of whether a

delay of no more than a month in implementing the injunction is appropriate 

so that the Closes may clean out their garage, replace the batteries for the 

garage door remote, or make other necessary changes. 

III.

Remaining Contentions

The Swensons request that we remand their trespass cause of action so 

that the trial court can assess damages. They argue that the trial court was

factually incorrect in indicating that their permission negated their trespass 
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claim because they only sought trespass damages for the period after they 

sent the April 2020 letter revoking permission. 

We decline to provide the requested relief because, even if the trial 

court erred in this regard or would be compelled to find otherwise in light of 

our interpretation of the easement, the trial court also found a failure of proof 

on the element of harm.13 In particular, the court was not persuaded the 

Closes have disrupted the Swensons’ “views of the bay and ocean.” 

“ ‘ “[W]here the issue on appeal turns on a failure of proof at trial, the 

question for a reviewing court becomes whether the evidence compels a 

finding in favor of the appellant as a matter of law.” [Citation.] Specifically, 

we ask “whether the appellant’s evidence was (1) ‘uncontradicted and 

unimpeached’ and (2) ‘of such a character and weight as to leave no room for 

a judicial determination that it was insufficient to support a finding.’ ” ’ 

[Citation.] This is ‘an onerous standard’ [citation] and one that is ‘almost 

impossible’ for a losing [party] to meet, because unless the trier of fact made 

specific factual findings in favor of the losing [party], we presume the trier of 

fact concluded that ‘[the party’s] evidence lacks sufficient weight and 

credibility to carry the burden of proof.’ ” (Estes v. Eaton Corp. (2020) 51 

Cal.App.5th 636, 651.) Here, in addition to hearing testimony from all four 

parties, the trial court reviewed photographic exhibits showing the view from 

the Swensons’ property over the Closes’ property. It may reasonably have 

interpreted the photographs that included cars parked by the Closes’ home as 

13 “ ‘Trespass is an unlawful interference with possession of property.’ 

[Citation] The elements of trespass are: (1) the plaintiff’s ownership or control 

of the property; (2) the defendant’s intentional, reckless, or negligent entry 

onto the property; (3) lack of permission for the entry or acts in excess of 

permission; (4) harm; and (5) the defendant’s conduct was a substantial 

factor in causing the harm.” (Ralphs Grocery Co. v. Victory Consultants, Inc.

(2017) 17 Cal.App.5th 245, 261–262; see CACI No. 2000.)
21

contradicting the Swensons’ claim that the vehicles disrupted their view. 

Accordingly, we cannot find the evidence compels a finding in the Swensons’ 

favor as a matter of law or that remand for a determination of damages is 

warranted.

As for the Swensons’ nuisance cause of action, the trial court concluded 

that they had not carried their burden of proof and the Swensons did not 

challenge this finding on appeal. We therefore affirm the judgment as to the 

private nuisance cause of action. 

Finally, the Closes request that, if we overturn the trial court’s ruling 

on the Swensons’ quiet title cause of action, we modify the prescriptive 

easement decision as well or remand for further findings on that issue. They

argue that the trial court’s SOD implies a finding that they proved a 

prescriptive easement equal to the rights afforded by the trial court’s 

interpretation of the easement. We decline the Closes invitation because 

they did not file a cross-appeal challenging the trial court’s ruling on their 

prescriptive easement claim. (Preserve Poway v. City of Poway (2016) 245 

Cal.App.4th 560, 585 [“ ‘To obtain affirmative relief by way of appeal, 

respondents must themselves file a notice of appeal and become crossappellants’ ”].)

DISPOSITION

The judgment is reversed as to the Swensons’ quiet title cause of action 

and requests for declaratory and injunctive relief. The matter is remanded 

with instructions to: (1) treat the easement as affording nothing more than a 

way for ingress and egress of vehicular traffic between the street and the 

garage of Lot 1, with no right to park, walk, or store items on the easement, 

and (2) issue an injunction consistent with this opinion. The trial court may 

allow a delay of no more than a month in issuing the injunction in 
22

consideration of the time it may take the Closes to ready their garage for 

vehicle parking or otherwise arrange for alternate access to their home. In 

all other respects, we affirm the judgment. The Swensons are entitled to 

their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3).)

HUFFMAN, Acting P. J.

WE CONCUR:

KELETY, J.

CASTILLO, J.