Law Offices of Pauline Abbott

Memorandum of Points and Authorities Supporting Application for Preliminary Injunction

Pauline Abbott, Esq. (95309) 1 LAW OFFICES OF PAULINE ABBOTT 1234 Scenic Avenue, Suite 1206 2 Vista View, California 94555 3 510-555-1234

4 Attorney for Cross-complainants Alan and Susan Butler 5

8 SUPERIOR COURT OF SEAVIEW COUNTY

9 NORTHERN BRANCH

10 Brian Lester, Case No. 71487-6

11 Plaintiff,

12 Vs.

13 Alan Butler and Susan Butler and Does 1-10,

14 Defendants; Memorandum of Points and Authorities

15 ______/ Supporting Application for Preliminary Injunction 16 Alan Butler and Susan Butler,

17 Cross-complainants, 18 Date: May 15, 2000 19 Time: 2:00 PM vs. Dept. 31/Hon. Ronald Polite 20 Trial Date: TBA / 21 Brian Lester, and Roes 1-10,

22 Cross-defendants. 23

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Introduction 1 In 1969, cross-complainants Alan and Susan Butler (“the Butlers”) moved to 2126 2

3 Perouse in Seaview. They immediately began using, landscaping, irrigating, and caring for a

4 parcel of property adjacent to their own. For 31 years they used it as part of their yard. In the

5 last two months plaintiff Brian Lester has banished them from it, fenced them out, and has begun

6 to systematically destroy the garden they had created there. This application for preliminary

7 injunction seeks to return the use of the premises to the Butlers, and permit them to return the

8 easement to its former condition. 9 The Facts 10

11 The Butlers have lived at 2126 Perouse, Seaview, for the past 31 years. (Declaration of

12 Alan Butler Supporting Ex Parte Application for Temporary Restraining Order [“Butler

13 declaration”], below.) It backs against 5961 Vista, owned by cross-defendant Brian Lester

14 (“Lester”). Upon moving into that property, they were concerned about a slide area adjacent to 15 their property, which provided subjacent and lateral support for their property. (Exhibit 2 to 16 Butler declaration. [All exhibits cited are to the Butler declaration.]) They bought, planted and 17 nurtured shrubs and flowers in that area, and watered them carefully until March of this year, 18 both to provide aesthetic enjoyment and to protect the hillside from slides. They placed 19 stepping-stones in the area to permit access for gardening, and they placed chairs there to enjoy 20 their handiwork. (Butler declaration.) 21

22 The Butlers also joined with other neighbors to construct a drainage system to protect

23 against slides. (Exhibits 5 and 6.) The drainage system runs adjacent to the easement area. The

24 landscaping in the easement is designed to protect from slides that would destroy the drainage

25 system for the neighborhood. (Id.)

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Upon planting the area, the Butlers were concerned about the damage to the landscaping 1 from the numerous deer that make a daily trek past the back of their property. Damage to the 2

3 landscaping would result in slides that would threaten the property to which the Butlers hold

4 record title, and to the drainage system. (See, e.g., Exhibit 1 to Butler declaration.) They knew

5 that deer easily jump even 6' fences. They attempted to repel the deer with various chemical

6 agents, but finally constructed a deer fence in 1985. (Exhibits 3 and 4.) The deer fence

7 consisted of a single electrified wire 18" above the ground that the deer did not cross. That fence

8 protected not only the landscaping in this area, but in the property to which the Butlers have 9 record title. (Id.) 10 Since 1969 the Butlers have used the easement area as part of their yard, for entertaining, 11 for a woodpile, and for everyday living. For 30 years their friends and guests visited them in that 12 area. (Declarations of Leon Soler and Ellen Soler In Support of Application for Preliminary 13 Injunction.) Their children played in it. (Declarations of Alan Butler, Jr. and Erin Butler In 14 Support of Application for Preliminary Injunction.) Throughout, they created a lush landscape 15

16 with shrubs, trees, and flowers. (Declarations of Leon Soler, Ellen Soler, Alan Butler, Jr. and

17 Alan Butler and Exhibits 7 through 10.)

18 They never asked for permission of any owner of 5961 Vista for any of these acts. No

19 owner of 5961 Vista ever gave permission for any of these acts. The Butlers continued this

20 activity until March 2004. (Butler declaration.) 21 In March 2004, without notice, warning or any communication with the Butlers, Lester 22 entered onto the easement property and removed the deer fence. He was told by a police officer 23 that the Butlers had perfected a prescriptive easement, and not to interfere with the easement 24 further. He was cited by a police officer for trespass. (Id.) 25

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When the Butlers replaced the fence, he removed it again. He posted a “No Trespassing” 1 sign, and then replaced it with a “Keep Out” sign. (Exhibits 11 through 14.) Ironically, he 2

3 placed these signs well within the property line of the land for which the Butlers hold record title.

4 (Id.)

5 When the fence was removed, deer began to enter the easement area and began

6 destroying the landscaping, which includes mature trees and shrubbery purchased, planted and

7 nurtured by the Butlers. The deer also entered the property to which the Butlers have record

8 title, and began to destroy that landscaping. (Id.) 9 The Butlers communicated to Lester’s attorney that they had perfected an easement over 10 this area over 25 years ago, and were suffering from great distress as a result of his actions. 11 (Butler declaration.) They sought a resolution of the matter. Lester did not respond to their 12 letter, but instead filed his complaint, and gave notice of his ex parte application for a temporary 13 restraining order. (Id.) 14 In the few days prior to the ex parte applications, Lester destroyed much of the 15

16 landscaping in the easement area, and constructed a 6-foot fence to prevent the Butlers from

17 access to the area. (Exhibits 16 through 27.) In some places the fence exceeds 6', but no permit

18 has been taken out. His workers removed whole shrubs, hacked away at others, and devastated

19 the area. Whole plants have been removed; others have been hacked apart and left to die.

20 (Exhibits 19, 20 and 22. Exhibit 15 shows plant material from the easement area being 21 removed.) The easement area has been left in a condition that is vulnerable to slides, 22 jeopardizing not only the easement itself, but also the property to which the Butlers hold record 23 title, and the neighborhood drainage system. (Exhibits 17, 18, 29 and 30.) The deer are also not 24 deterred by Lester’s fence. (Id.) Obviously, the Butlers enjoyment of their easement is at an 25

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end, and their enjoyment of the property to which they hold record title is deeply affected. (Id. 1 Exhibit 28 is taken from the easement of the Butlers’ home; Exhibit 31 is also taken of the 2

3 easement area.)

4 The Butlers, who both suffer from hypertension, have suffered, and continue to suffer

5 from Lester’s threats, and his wholesale and irresponsible destruction of their easement. (Id.)

6 He has constructed a fence to keep them out, and he has destroyed their landscaping. They

7 particularly fear that he will destroy even more of the mature landscaping they have cared for

8 over 30 years. They are suffering, and will continue to suffer from physical and emotional 9 injuries as this dispute wages on. (Id.) 10 If the easement area is not returned to its original condition in the next few weeks, there 11 will not be plants in the area to protect from slides, and to protect the drainage system. If the 12 deer fence is not returned to its original location, the deer will be able to jump the fence, and 13 damage the property to which the Butlers have record title. (Id.) 14 If the easement is not immediately returned to its original condition, and to the care of the 15

16 Butlers, they will be irreparably injured by being prevented from the use and enjoyment they

17 have had for the past 31 years. (Id.)

19 I. CROSS-COMPLAINANTS ARE ENTITLED TO A PRELIMINARY INJUNCTION. 20

21 Cross-complainants perfected an easement over the disputed area over 25 years ago.

22 Injunctive relief is appropriate to protect the rights of holders of prescriptive easements (LeDeit 23 v. Ehlert (1962) 205 Cal. App. 2d 154, 169 [TRO proper to protect prescriptive easement].) 24 Since it appears the Butlers are entitled to the relief demanded in the cross-complaint, and the 25

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preliminary injunction is the same as the permanent relief sought, they are entitled to the 1 preliminary injunction. (CCP section 526(a).) 2

3 A preliminary injunction is justified to prevent wrongs of repeated and continuing

4 character or that cause damages estimable only by conjecture and not by any accurate standard.

5 (People ex rel. Gow v. Mitchell Brothers' Santa Ana Theater (1981) 118 Cal. App. 3d 863, 870-

6 871; Wind v. Herbert (1960) 186 Cal. App. 2d 276, 285.) This is just such a case. Preliminary

7 injunctive relief is required since the Butlers are suffering and will continue to suffer irreparable

8 damage as a result of Lester’s actions, and it is not possible to determine an amount of damages 9 that could compensate them for their continued suffering. 10 Moreover, an injunction is warranted since an ordinary damage award cannot compensate 11 the damage to the easement itself. (Brownfield v. Daniel Freeman Marina Hospital (1989) 208 12 Cal. App. 3d 405, 410.) Indeed, if a preliminary injunction is not issued, plaintiff, by sheer 13 physical will and in complete disregard to the Butlers’ rights, will have obtained the relief he 14 seeks in his action, by wresting control from the Butlers, all without any color of law. These 15

16 actions, if not reversed during the pendency of this action, will render any judgment ineffectual.

17 (CCP section 526(a).)

18 That pecuniary remedies are inadequate to compensate the Butlers for this harm and that

19 it would be extremely difficult to ascertain the amount of compensation that would afford

20 adequate relief also justify preliminary injunctive relief. (Id.) 21 Moreover, there is no reason to believe that Lester would be harmed by a preliminary 22 injunction. He asserts he has owned his lot for almost two years. He has not taken any action 23 before now, and his property has not suffered. (Indeed, since the Butlers were caring for the 24 easement, he was relieved of that obligation, and has benefited from their work!) Thus, it is 25

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likely that the Butlers will prevail at trial and there will be no harm to plaintiff in the interim if a 1 preliminary injunction is granted. (Teachers Ins. & Annunity Assn. v. Furlotti (1999) 70 Cal. 2

3 App. 4th 1487, 1493; 14859 Moorpark Homeowner's Assn. v. VRT Corp. (1998) 63 Cal. App.

4 4th 1396, 1402.)

5 The Butlers and their easement are suffering harm right now, and will continue to do so

6 during the pendency of the action. (Casmalia Resources, Ltd. v. County of Santa Barbara (1987)

7 195 Cal. App. 3d 827, 838.) They cannot be compensated later, even if the easement is returned

8 to them, and money paid. Moreover, there will be no harm to cross-defendant Lester if the 9 easement is returned to the condition it has been in for the past 31 years, not to mention the 10 nearly two years of his ownership, for the duration of this action. 11 Cross-complainant’s application for preliminary injunction must be granted. 12

16 May 12, 2004 Respectfully submitted,

18 Pauline Abbott, Esq. Attorney for Cross-complainants Alan and 19 Susan Butler

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