California Court of Appeals, Second District, Second Division
IT IS ORDERED that the opinion filed herein on May 22, 2015,
237 Cal.App.4th 16; __ Cal.Rptr.3d __ be modified as follows and the petition for rehearing is DENIED:
1. On page 3, the second paragraph, line 15 [237 Cal.App.4th 19, advance report, 1st par., line 15], the following sentence is inserted after the sentence ending in “yard.”:
The court alternatively ruled that it would grant an equitable easement independently of these considerations based on its own, unfettered view of “whatever it deems important... in determining how the equities are to be balanced.”
2. On page 4, the first paragraph, line 6 [237 Cal.App.4th 19, advance report, 1st par. under Discussion, line 14], the following words are inserted after the number “576.”:
(Warsaw).) Unless all three prerequisites are established, a court lacks the discretion to grant an equitable easement. (Warsaw, at p. 576 [so noting]; Brown Derby Hollywood Corp. v. Hatton (1964) 61 Cal.2d 855, 858 [40 Cal.Rptr. 848, 395 P.2d 896] [same] (Brown Derby); see also Tashakori, at p. 1009 [all three “must be present”].) Contrary to the trial court’s suggestion, the equitable nature of this doctrine does not give a court license to grant easements on the basis of “whatever [a court] deems important, ” even when these prerequisites are absent.
3. On page 4, the second paragraph, line 6 [237 Cal.App.4th 19, advance report, last par., line 6], the following sentence is inserted after the sentence ending in “trespasser.”:
These labels also suggest that the conveniences or hardships between the trespasser and property owner start out in equipoise, when the doctrine actually requires that they begin tipped in favor of the property owner due to
the owner’s substantial interest in exclusive use of her property arising solely from her ownership of her land.
4. On page 4, the second paragraph [237 Cal.App.4th 20, advance report, 1st par., line 3], in the sentence beginning “What is more, ” the words “presumptively heavy hardship the” are inserted between the words “the” and “owner”; and the word “suffer” is inserted between the words “will” and “from” so that the sentence reads:
What is more, there are good reasons to require the trespasser seeking an equitable easement to prove that she will suffer a greatly disproportionate hardship from denial of the easement than the presumptively heavy hardship the owner will suffer from its grant.
5. On page 4, the third paragraph, line 11 [237 Cal.App.4th 20, advance report, 1st full par., lines 12-13], the case citation beginning with “Brown Derby” is deleted, and ...