Nassir v. Feng CA2/1

Filed 8/26/21 Nassir v. Feng CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

FARZIN NASSIR, Individually and B305184
as Trustee, etc.,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. BC597173)

v.

XIAOGANG FENG et al.,

Defendants and Appellants.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Richard J. Burdge, Jr., Judge. Affirmed.
Early Sullivan Wright Gizer & McRae, Eric P. Early,
Stephen Y. Ma and Sophia S. Lau for Defendants and Appellants.
Ecoff Campain & Tilles, Lawrence C. Ecoff and Alberto J.
Campain for Plaintiff and Respondent.

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 Defendants and appellants Xiaogang Feng and Fan Xu
(collectively, defendants) challenge the trial court’s grant of
a permanent injunction requiring them to remove a concrete
deck that extends from the back of their home and encroaches
on the property of their neighbor, plaintiff and respondent
Farzin Nassir. Defendants contend that the trial court erred
(1) in failing to find that plaintiff ’s claims were barred by laches;
and (2) in refusing to grant defendants an equitable easement
to allow them to keep the deck. We disagree and affirm.

FACTS AND PROCEEDINGS BELOW
Plaintiff and defendants own adjoining properties in
the Mount Olympus neighborhood in the Hollywood Hills in
Los Angeles. Plaintiff ’s “Hercules” property, which he has owned
since 2000, is located downhill from the defendants’ “Achilles”
property,1 which they purchased in April 2014. A concrete deck
originates in the backyard of the Achilles property and extends
about 14 feet over the property line and into the back of the
Hercules property. The deck is approximately 10 feet tall, made
of solid concrete, and a metal fence surrounds the base of the
structure.
Plaintiff discovered that the deck encroached on his
property as a result of a topographic survey performed on or
around September 6, 2012. Plaintiff initiated the survey as a
result of separate, unrelated litigation against a previous owner
of the Achilles property.
Defendants purchased the Achilles property in April 2014
for $5 million. Feng testified that the scenic view from the

1The properties are so named because they are located on
Hercules Drive and Achilles Drive, respectively.

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encroaching deck was a principal reason for buying the house.
At the time of purchase, the seller provided defendants with
disclosures on a standard questionnaire form. In response to
a question on whether there were any “[r]eports, . . . studies,
surveys or other documents pertaining to” (1) “the condition or
repair of the [p]roperty . . . or” (2) “easements, encroachments
or boundary disputes,” the seller disclosed that a “lot survey” of
the property existed, but did not specify that it would show any
encroachments or disputes. The record does not contain the lot
survey. Defendants did not obtain a copy of the survey, nor did
they take any other steps to ascertain the legality of the deck.
On October 8, 2015, plaintiff filed suit, alleging causes
of action for trespass and declaratory relief, and requested
preliminary and permanent injunctions. Defendants filed a
cross-complaint alleging causes of action for quiet title, and
declaratory relief for prescriptive and equitable easements.
In August 2017, two years into the current case, plaintiff
contacted the Los Angeles Department of Building and Safety
(LADBS) to report the encroaching deck. An LADBS inspector
found that the deck had been built without permits and issued
an order requiring plaintiff to obtain the needed permits. When
plaintiff failed to comply, LADBS issued a fine for noncompliance
with a new date for correction. According to the inspector, if a
property owner does not comply at this stage, the department
would ordinarily transfer the case to the city attorney for legal
action, including potential criminal charges for noncompliance.
In this case, however, LADBS is awaiting the outcome of the
litigation before moving forward.
After a bench trial, the court issued a statement of decision
finding in favor of plaintiff on all of its causes of action and

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denying defendants an easement. The court entered judgment
on January 29, 2020 granting a permanent injunction requiring
defendants to remove the deck at their expense.

DISCUSSION
A. Laches
Defendants contend that the trial court erred by failing to
find that laches barred plaintiff ’s claim for injunctive relief. We
disagree.
An injunction is an equitable remedy to which the doctrine
of laches applies. (See Committee to Save the Beverly Highlands
Homes Assn. v. Beverly Highlands Homes Assn. (2001) 92
Cal.App.4th 1247, 1266.) Laches bars equitable relief to a
plaintiff who has waited an unreasonable time to seek relief
when the delay is prejudicial to the defendant. (Columbia
Engineering Co. v. Joiner (1965) 231 Cal.App.2d 837, 856−857;
see also Danjaq LLC v. Sony Corp (9th Cir. 2001) 263 F.3d 942,
951.) In general, “ ‘the existence of laches is a question of fact to
be determined by the trial court in light of all of the applicable
circumstances,’ ” which we review for substantial evidence.
(Truck Ins. Exch. v. Workers’ Comp. Appeals Bd. (2016) 2
Cal.App.5th 394, 402.) But, where the relevant facts are
undisputed, we determine whether laches applies as a matter
of law. (Bakersfield Elementary Teachers Assn. v. Bakersfield
City School Dist. (2006) 145 Cal.App.4th 1260, 1274.)
The doctrine requires (1) delay in asserting a right or
claim (2) which was not reasonable or excusable and (3) which
has prejudiced the defendant. (Magic Kitchen LLC v. Good
Things Internat., Ltd. (2007) 153 Cal.App.4th 1144, 1157 (Magic
Kitchen).) “The party asserting laches bears the burden of

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production and proof on each element of the defense.” (Highland
Springs Conference & Training Center v. City of Banning (2016)
244 Cal.App.4th 267, 282.)
Delay in asserting a claim is typically measured
against the relevant statute of limitations for the action. If the
plaintiff ’s claim “is filed within the analogous state limitations
period . . . the strong presumption is that laches is inapplicable.”
(Magic Kitchen, supra, 153 Cal.App.4th at p. 1157.) This
presumption may be overcome in exceptional circumstances.
(See, e.g., Holt v. County of Monterey (1982) 128 Cal.App.3d 797
(Holt).)
The requirements of unreasonability and prejudice are
“interrelated.” (In re Marriage of Modnick (1983) 33 Cal.3d
897, 908.) Generally, a delay is unreasonable when it results
in prejudice (see Brown v. State Personnel Bd. (1985) 166
Cal.App.3d 1151, 1159), and “ ‘the greater the prejudice, the
more timely must be the relief sought.’ ” (In re Marriage of
Modnick, supra, 33 Cal.3d at p. 908.) To demonstrate prejudice,
the claimant can show that she “took actions or suffered
consequences that [she] would not have, had the plaintiff brought
suit promptly.” (Danjaq LLC v. Sony Corp., supra, 263 F.3d at
p. 955.)
In this case, plaintiff learned of the encroaching deck
around September 2012 and filed suit against defendants three
years later, on October 8, 2015. Thus, plaintiff filed suit within
the five-year statute of limitations for an action for the recovery
of real property2 (see Code Civ. Proc., § 318), and defendants

2Defendants do not claim that the statute of limitations
began running at an earlier date when plaintiff should have

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must overcome a “strong presumption” against the application
of laches. (Magic Kitchen, supra, 153 Cal.App.4th at p. 1157.)
Holt, supra, 128 Cal.App.3d 797 provides an example of the
circumstances required to overcome this presumption. In Holt,
the real party in interest submitted a proposal in 1975 to develop
a condominium complex. (Id. at p. 799.) The county board of
supervisors approved the plan in 1977 and granted the developer
a use permit in 1979. (Id. at pp. 799–800.) A few months later,
the plaintiff filed suit, alleging that because the county had failed
to submit a valid general plan for development of county land,
the specific plan for the development of the condominium
complex, which was required to conform to the general plan, was
invalid. (Id. at p. 800.) The court held that laches barred the
claim. (See id. at pp. 801–802.) Although the plaintiff had acted
within the relevant limitations periods for challenging the
validity of a use permit or a tentative subdivision plan, the court
nevertheless held that he had unreasonably delayed bringing
suit, to the prejudice of the developer. (Ibid.) The plaintiff knew
about the developer’s plans as early as 1976, yet he waited two
and a half years before making his claim, during which time the
developer spent more than $4 million in justifiable reliance on
the validity of its plan. (Id. at p. 801.)
Defendants claim that they are similarly positioned to the
developer in Holt. They note that they purchased the property
during the three-year window between the time plaintiff
discovered the encroachment and when he finally filed suit.
If he had acted sooner, they would have known that the deck
was illegal and would not have purchased the property. Thus,

become aware of the encroachment, and we therefore do not
consider this possibility.

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they contend that plaintiff ’s delay in filing suit unreasonably
prejudiced them.
We are not persuaded. Key to the court’s decision in
Holt is that the plaintiff knew of the potential prejudice to the
defendant and allowed it to grow greater for two years before
finally challenging the validity of the permits. (See Holt, supra,
128 Cal.App.3d at p. 801.) In this case, by contrast, there is
no evidence that plaintiff knew that defendants intended to
purchase the property. Additionally, in Holt, the developer
had good reason to believe that its permits were valid and acted
in justifiable reliance on that belief. Here, defendants simply
failed to investigate the property boundaries, which had they
done would have disclosed the encroachment. Under these
circumstances, the trial court did not err by denying defendants’
claim of laches.

B. Equitable Easement
Defendants next claim that the court erred in denying them
an equitable easement. We disagree.
In cases involving adjacent property owners where a
party has encroached upon the neighbor’s property, the neighbor
“is generally entitled to a mandatory injunction requiring the
defendant to remove the encroachment.” (Nellie Gail Ranch
Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 1003.)
In exceptional cases, however, the trial court may deny an
injunction and instead grant an equitable easement in favor
of the encroacher. Christensen v. Tucker (1952) 114 Cal.App.2d
554, the classic authority on this issue, sets out the three
requirements that an encroacher must establish to obtain
an equitable easement. First, she must be innocent, i.e.,
the encroachment must not be the result of a willful act or

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negligence. Second, the granting of the easement must not
cause irreparable injury to the other party. Third, the hardship
to the encroacher from granting the injunction must be greatly
disproportionate to the harm an easement would impose on the
other party. (Id. at p. 562; see also Hirshfield v. Schwartz (2001)
91 Cal.App.4th 749, 769.)
We defer to the trial court’s factual findings so long as
they are supported by substantial evidence. (See Hirshfield v.
Schwartz, supra, 91 Cal.App.4th at p. 772.) We review the trial
court’s application of the equitable easement doctrine for abuse
of discretion. (Shoen v. Zacarias (2015) 237 Cal.App.4th 16, 19.)
Under this standard, we will not disturb the court’s decision “as
long as there exists ‘a reasonable . . . justification, under the law,
for the action taken.’ ” (Gonzales v. Nork (1978) 20 Cal.3d 500,
507.)
Here, the defendants failed to meet the third requirement
of demonstrating a disproportionate hardship from the
enforcement of an injunction. Because this factor alone is
sufficient to justify the trial court’s decision, we need not consider
whether defendants were innocent,3 or whether the grant of an
easement would cause an irreparable injury to plaintiff.

3 Although we need not decide the innocence issue, we note
that before purchasing the property, the seller gave defendants a
standard disclosure form where, in response to a question about
whether there were any “[r]eports, . . . studies, surveys or other
documents pertaining to” (1) “the condition or repair of the
[p]roperty . . . or” (2) “easements, encroachments or boundary
disputes,” the seller answered “yes,” and noted that a “lot survey”
of the property existed. Yet defendants failed to obtain a copy of
the survey or investigate further.

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 At trial, defendants identified two hardships that they
would suffer if the court granted plaintiff ’s injunction: They
would have to pay to remove the deck, and they would lose
the scenic view from the deck, thus diminishing the value of
their property. Defendants’ expert on valuation testified that
the loss of the deck would reduce the value of the property by
approximately $190,000.4 As to the cost of removal, the trial
court found that defendants had failed to produce any competent
evidence. Defendants do not dispute this finding.
The trial court identified three hardships to plaintiff if
defendants obtained an equitable easement. First, plaintiff
would permanently lose access to the 338 square feet of his land
on which the deck sits. Plaintiff ’s expert estimated the value
of this land at $150 per square foot, or $50,700 in aggregate.
Defendants do not dispute the accuracy of this estimate. Also,
plaintiff has suffered loss of privacy by virtue of the encroaching
deck, from which certain parts of plaintiff ’s home are visible.
The per square foot estimate, however, undervalues the
hardship to plaintiff, as it does not take into account the impact
of the deck on plaintiff ’s privacy, the aesthetics or the loss of
value of plaintiff ’s property.
The remaining hardship to plaintiff is more difficult to
quantify but no less real. According to LADBS, plaintiff could
face criminal liability if the deck is not removed. Defendants
contend that the possibility of criminal prosecution is not a
real hardship because plaintiff could not be criminally liable for
a deck he did not build or maintain. We disagree. Regardless
of whether plaintiff would ultimately be vindicated, the mere

4This is 3.8 percent of the $5,000,000 defendants paid for
the property.

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possibility of criminal prosecution is a hardship to plaintiff.5
For an equitable easement to be appropriate, the defendants
must show that they “will suffer a greatly disproportionate
hardship from denial of the easement than the presumptively
heavy hardship the owner will suffer from its grant.” (Shoen v.
Zacarias, supra, 237 Cal.App.4th at p. 20.)
The trial court’s conclusion that the balance of hardships
favored plaintiff was reasonable; thus, the court did not abuse
its discretion by granting the injunction. Although the hardships
to defendants in removing the deck are meaningful, they do not
outweigh the detriment to plaintiff from allowing the deck to
remain in place.

5 Defendants claim that the doctrine of unclean hands
should preclude plaintiff from claiming hardships related to the
possible LADBS prosecution because plaintiff brought about the
threat of prosecution by reporting the potential violation to the
LADBS. Unclean hands is an equitable doctrine that prevents
a party from asserting a right if he engaged in inequitable or
bad faith conduct in acquiring the right. (See Camp v. Jeffer,
Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, 638.)
Defendants claim that by reporting to LADBS the encroaching
deck, plaintiff “self-inflicted” this hardship. We are not
persuaded. As the trial court noted, “[a]sking for [LADBS]
to determine whether a structure on one[’]s o[w]n property
[complies with legal requirements] is not wrongful; it is lawful
and should be encouraged. . . . The damage to [p]laintiff was
caused by the illegal structure, regardless who reported it.”

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 DISPOSITION
The trial court’s judgment is affirmed. Nassir is awarded
his costs on appeal.
NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.
We concur:

CHANEY, J.

CRANDALL, J.*

* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.

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