Clayton v. Canada CA1/5

Filed 10/26/26 Clayton v. Canada CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE RUPERT CLAYTON et al., Plaintiffs and Respondents, A171045 v. HERBERT CANADA et al., (Alameda County Defendants and Appellants. Super. Ct. No. 21CV003448) In a dispute between neighbors, the trial court entered a judgment granting plaintiffs, Rupert Clayton and Miriam Pinchuk, an exclusive easement for gardening purposes over a portion of defendants’ property. Defendants, Herbert Canada and Bernadette Rodriguez, contend the trial court abused its discretion in granting an equitable easement and an implied easement, and that it improperly admitted certain hearsay evidence regarding a transaction between the parties’ predecessors. We affirm. FACTUAL AND PROCEDURAL BACKGROUND This matter proceeded to a court trial on plaintiffs’ claims for an implied easement, quiet title, equitable easement, reformation of deed, and declaratory relief. We summarize the relevant facts in the light most favorable to the plaintiffs, the prevailing parties below, giving them the 1 benefit of all reasonable inferences. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630–631.) I. Parties and Disputed Area In 2017, defendants purchased the residence and property at 304 Olive Avenue in Piedmont, California, from the trust established by the predecessor owners, the Kroeger family. In 2019, plaintiffs purchased the adjacent residence and property at 300 Olive Avenue in Oakland, California, from the family trust established by the predecessor owners, Harry and Carol Reom. The southwestern boundary of defendants’ 304 Olive property runs along the northeastern property line of plaintiffs’ 300 Olive property. The area involved in this case is a 20-by-20-foot, L-shaped portion of property located within the legal description and boundaries of the grant deed for defendants’ property at 304 Olive (Disputed Area). However, the Disputed Area is separated from 304 Olive by a retaining wall and fence which enclose it within 300 Olive. The retaining wall is approximately one foot above grade on the 304 Olive side. There is an approximately four-foot drop in elevation from 304 Olive to the Disputed Area and 300 Olive. A four-foot-tall fence sits above the four-foot-tall retaining wall. When plaintiffs purchased 300 Olive, they believed the Disputed Area was part of the property because it appeared to be obviously separated from 304 Olive. The Disputed Area was well maintained and weeded. Further, the Disputed Area was inaccessible from 304 Olive because of the fence on top of the retaining wall and the thick vegetation on 304 Olive. Plaintiffs received disclosures describing the “ ‘jog’ ” in the property line as a result of a 1955 transaction which changed the boundary line. Plaintiffs testified that the Disputed Area, which they considered a garden area, was critical to their decision to purchase 300 Olive. 2  In 2020, plaintiffs and defendants discussed replacing the fence between their properties. During these discussions, defendant Canada sent plaintiffs a survey that he recorded the year before, which included the Disputed Area within the boundaries of 304 Olive. Plaintiffs noted the survey appeared to be incorrect because the Disputed Area was not included as part of 300 Olive. Plaintiffs contacted Larry Reom, the son of the late Reoms, who also was a neighbor of plaintiffs and who was involved in the sale of the property to plaintiffs. Larry Reom explained he previously provided Canada with documentation of a 1955 transaction regarding the Disputed Area and Canada promised to record the document. Plaintiffs continued to openly and regularly garden in the Disputed Area until December 2021, when Canada called the police to report a trespass. Plaintiffs sued defendants, seeking an implied easement, prescriptive easement, equitable easement, adverse possession, and declaratory relief.1 Plaintiffs ceased using the Disputed Area pending the outcome of the litigation. II. 1955 Transaction Between Prior Owners In 1955, the Kroegers, who were the prior owners of 304 Olive, agreed to sell the Disputed Area to the Reoms, the prior owners of 300 Olive, in exchange for a reconveyance of an access easement benefitting 300 Olive and burdening 304 Olive, payment of $250, and Carol Reom’s providing babysitting services for the Kroegers’ young child. The motivation for the 1 On January 12, 2024, the trial court granted summary adjudication to defendants on plaintiffs’ causes of action for prescriptive easement and adverse possession. On February 8, 2024, shortly before trial began on February 13, 2024, plaintiffs filed a second amended complaint asserting causes of action for implied easement, quiet title, equitable easement, reformation of deed, and declaratory relief. 3 agreement was the Kroegers’ desire to build a garage which would block the Reoms’ access to their property from an alleyway. As a result of the agreed- upon transaction, the Kroegers demolished their old garage and constructed a new one. They also constructed the retaining wall and fence separating the two properties and enclosing the Disputed Area as part of 300 Olive. By the time of trial, the parties to the 1955 transaction were unavailable. Larry Reom testified that his parents’ files contained a written document memorializing the 1955 transaction. At the time of trial, however, Larry could not find a copy of the 1955 transaction document. He explained the document was on legal letterhead and stated a section of property at the bottom of 304 Olive and 300 Olive was transferred to his parents for $250, an undisclosed amount of babysitting, and the termination of the easement leading to a garage. Larry was unsure if the document was a deed, but it contained a legal description of the property and had signatures, although he could not say by whom it was signed. Larry testified that his sister, Rebecca, was friends with Anne Kroeger, the daughter of the Kroegers. Larry was told by his parents that part of their payment for the Disputed Area was through his mother’s babysitting for Anne Kroeger. The late Reoms’ files contained letter fragments from 1955 referencing the agreement between the neighbors. Larry believed the letters were written by either Margaret Kroeger or her eldest daughter. The letter fragments stated that Anne would go over to “ ‘Becky’s,’ ” which was how Carol Reom was paying for the “ ‘20 by 20 piece of backyard we are selling them.’ ” They further stated that the plot was sketched to be sent to “ ‘Stacy,’ ” to “ ‘take it to the title company to write up the legal description.’ ” The late Reoms’ files also contained a letter from Stacy Dobrzensky, the Kroegers’ attorney discussing whether a “ ‘traveled way’ ” had expired. 4  In addition, Harry Reom’s files contained a plot map with his notations highlighting a triangle of land on 304 Olive. In September 2006, Harry Reom wrote a letter to an attorney stating that a portion of a triangle of land at the back of the property at 300 Olive “was acquired from my neighbor in 1955, in exchange for his blocking my access to the back alleyway. The rest is what is the now land-locked end of the access alleyway to my garage (long gone). I’ve been planting vegetables on it for about 50 years. [¶] I don’t think this entire piece of land has ever been recorded properly.”2 III. Discussions Between Reoms and Canada in 2018 In the fall of 2018, while Larry’s mother, Carol, still resided at 300 Olive, Larry and Carol noticed survey stakes in the Disputed Area and some slats missing from the fence. During this time, Canada began communicating with Carol Reom about acquiring a “ ‘critically important’ ” storm drainage easement needed for Canada’s remodel of 304 Olive. Carol died before the easement discussions were concluded, and then Canada continued the discussions with Larry. Before the surviving Reoms granted the storm easement to Canada, Larry told Canada about the 1955 transaction and gave Canada the document describing the transaction. Canada never indicated that he contested ownership of the Disputed Area, and Larry understood that Canada would record the document of the 1955 transaction.3 The conversation was amiable. In December 2018, Larry and 2 The letter inquired whether the portion of land acquired from Reom’s neighbor, which was in Piedmont, qualified residents of 300 Olive for the Piedmont School District. 3 At trial, Canada denied that he promised to honor the 1955 transaction. He said he told Larry that he would only do so if Larry could produce a deed demonstrating the Reoms were “ ‘bona fide’ ” owners of the Disputed Area. Canada said the documents Rebecca provided to him did not include a deed and he distrusted the authenticity of the letter fragments. 5 Rebecca, as trustees, granted the storm drainage easement to defendants for no compensation. It allowed defendants to connect to a pipe on 300 Olive uphill from the Disputed Area. Larry testified that he would not have granted the storm drain easement to defendants if he had been aware defendants disputed the evidence he provided of the 1955 transaction document and were going to claim ownership of the Disputed Area. IV. Discussions Between Plaintiffs and Defendants in 2020 In 2020, during discussions between plaintiffs and defendants regarding replacing the fence between their properties, Canada stated, “ ‘I have that document about the bottom of the garden. I can get it recorded or I can work with you to get it recorded.’ ” The plaintiffs were confused because they believed it had already been recorded. Canada admitted to the conversation but claimed that when he said he was going to record a document he was referring to the survey he had completed which showed he owned the Disputed Area. The trial court discredited Canada’s testimony that he was referring to the survey. Canada testified, and a July 2020 email he sent to plaintiffs stated, that he recorded the survey the year before. V. Trial Court’s Legal Determinations After a six-day bench trial, the trial court issued a 16-page statement of decision. It first addressed defendants’ hearsay objections to the letter fragments, Harry Reom’s 2006 letter, the verbal statements of Harry and Carol Reom concerning boundaries, the 1955 transaction document, and Larry’s testimony regarding the 1955 transaction document. It overruled Canada had two or three more discussions with Larry and Rebecca while the storm drainage issue was pending, and they consistently told him they could not find a deed. However, the trial court found Canada was aware of the 1955 transaction agreement to convey the Disputed Area, promised to record the agreement, and reneged. 6 defendants’ objections and found Larry’s testimony concerning the lost 1955 transaction document admissible under Evidence Code sections 1521, subdivision (a) and 1523;4 the letter fragments admissible as ancient documents under Evidence Code section 1331; and all of the statements of Harry and Carol Reom admissible under Evidence Code section 1323.5 The trial court concluded there was insufficient evidence to find that the 1955 transaction was memorialized in a deed and that no such deed was ever recorded. However, the court found the evidence reflected an agreement between adjacent landowners to transfer the Disputed Area or at least to confirm the right to exclusive use of the Disputed Area. The trial court denied the plaintiffs’ claims for quiet title and reformation of the deed. 4 Evidence Code section 1521, subdivision (a) states: “The content of a writing may be proved by otherwise admissible secondary evidence” except when “[a] genuine dispute exists concerning material terms of the writing and justice requires the exclusion” or “[a]dmission of the secondary evidence would be unfair.” Evidence Code section 1523 permits admission of oral testimony to prove the content of a writing “if the proponent does not have possession or control of a copy of the writing and the original is lost or has been destroyed without fraudulent intent on the part of the proponent of the evidence” or “if the proponent does not have possession or control of the original or a copy of the writing and . . . [¶] . . . [n]either the writing nor a copy of the writing was reasonably procurable by the proponent by use of the court’s process or by other available means.” (Evid. Code, § 1523, subds. (b) & (c).) 5 Evidence Code section 1331 states: “Evidence of a statement is not made inadmissible by the hearsay rule if the statement is contained in a writing more than 30 years old and the statement has been since generally acted upon as true by persons having an interest in the matter.” Evidence Code section 1323 states: “Evidence of a statement concerning the boundary of land is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and had sufficient knowledge of the subject, but evidence of a statement is not admissible under this section if the statement was made under circumstances such as to indicate its lack of trustworthiness.” 7 However, it found the plaintiffs satisfied the requirements for an implied easement and an equitable easement over the Disputed Area. The trial court entered judgment in favor of plaintiffs, granting them an exclusive easement for gardening purposes. DISCUSSION I. Hearsay Evidence Defendants contend the trial court erred in admitting Larry’s testimony about what his parents told him regarding the 1955 transaction, Rebecca’s testimony about her father’s statements regarding the 1955 transaction, and Harry Reom’s 2006 letter. They claim this evidence was improperly admitted under Evidence Code section 1323.6 We review the admission of evidence for abuse of discretion. (Christ v. Schwartz (2016) 2 Cal.App.5th 440, 446–447.) However, to the extent defendants’ argument is based on statutory interpretation of Evidence Code section 1323, we apply de novo review. (McDermott Ranch, LLC v. Connolly Ranch, Inc. (2019) 43 Cal.App.5th 549, 559.) 6 As discussed ante, the trial court’s statement of decision addressed generally the hearsay objections to evidence of the 1955 transaction, the letter fragments, the verbal statements of Harry and Carol Reom concerning boundaries, Harry Reom’s 2006 letter, the 1995 transaction document, and Larry’s testimony concerning the 1955 document. It found much of the evidence admissible under Evidence Code sections 1521 and 1523 governing admission of oral testimony regarding contents of a lost writing, and it found the letter fragments admissible as ancient documents under Evidence Code section 1331. Defendants do not contest these rulings on appeal other than to state in footnote 12 of their opening brief that the letter fragments “were not truly authenticated at all.” We do not address the issue of authentication of the letter fragments because defendants raise the issue in a footnote rather than under a separate heading as required by California Rules of Court, rule 8.204. (Sabi v. Sterling (2010) 183 Cal.App.4th 916, 947 [“Footnotes are not the appropriate vehicle for stating contentions on appeal”].) 8  Evidence Code section 1323 states: “Evidence of a statement concerning the boundary of land is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and had sufficient knowledge of the subject, but evidence of a statement is not admissible under this section if the statement was made under circumstances such as to indicate its lack of trustworthiness.” According to defendants, section 1323 does not apply because “there was no dispute between the parties regarding the boundaries of the Disputed Area, the fact that [the] publicly-recorded legal description of 304 Olive includes the Disputed Area, or the fact that the recorded description of 300 Olive does not.” Defendants contend the contested evidence was admitted to prove the plaintiffs’ “asserted ownership of and/or right to use that precisely-defined section of property” and therefore section 1323 does not apply. The trial court initially rejected defendant’s argument during trial, finding that the case involved a boundary dispute as to whether the Disputed Area was part of 300 Olive or 304 Olive and thus Evidence Code section 1323 applied. After further briefing on the issue, the trial court’s statement of decision again rejected defendants’ hearsay objections and confirmed that testimony regarding the late Reoms’ statements was admissible under section 1323. In construing the meaning of a statute, we first look to the statutory language to ascertain the legislative intent. (McDermott Ranch, LLC v. Connolly Ranch, Inc., supra, 43 Cal.App.5th at p. 559.) “Where the intent is clear from the language itself, the court will not look beyond the plain meaning.” (Ibid.) The plain language of Evidence Code section 1323 allows hearsay evidence of statements “concerning the boundary of land . . . if the declarant 9 is unavailable as a witness and had sufficient knowledge of the subject . . . .” Defendants acknowledge the definition of boundary is “ ‘something that indicates or fixes a limit or extent.’ ” (Merriam-Webster’s Unabridged Dict. <https://unabridged.merriam-webster.com/unabridged/boundary> [as of Oct. 22, 2026].) They argue that the plain meaning of the statute is that a court may properly admit hearsay statements “concerning the indicating or fixing of a limit or extent of property” and that here the statements concern the ownership or possessory interest of a property rather than the fixing of the limit or extent of a property. (Italics omitted.) We are unpersuaded that the plain language of Evidence Code section 1323 does not apply to this action involving claims for quiet title, reformation of deed, equitable easement, and implied easement. As the trial court correctly determined, the dispute was over the boundaries of adjacent properties. Defendants claim the trial court’s interpretation of the statute is “such a tortured, technical interpretation” that would allow hearsay evidence in all disputes over ownership or access to real estate. We disagree that the trial court’s interpretation of section 1323 was “tortured” or “technical.” Nor do we share defendants’ purported concern about the admission of hearsay evidence in all disputes over ownership or access to real estate. Section 1323 only allows such hearsay evidence “if the declarant is unavailable as a witness and had sufficient knowledge of the subject . . . .” We find that the plain meaning of the statute permits admission of the statements of Harry and Carol Reom and Harry Reom’s 2006 letter because the evidence concerns the boundary of the property at issue, the declarants were unavailable, and the declarants had sufficient knowledge of the subject. (Evid. Code, § 1323; see McDermott Ranch, LLC v. Connolly Ranch, Inc., supra, 43 Cal.App.5th at pp. 551, 559–561 [affirms admission of witness’s testimony under Evid. Code, 10 § 1323, as to his deceased father’s statements concerning the location of disputed boundary in lawsuit between adjacent property owners and holds § 1323’s trustworthiness requirement does not mandate exclusion of hearsay statements of unavailable witnesses who had an interest in the land at time statements were made].) Having found no error in the trial court’s admission of evidence of the verbal statements of Harry and Carol Reom, and Harry Reom’s 2006 letter, we need not address defendants’ prejudice argument. II. Easement The trial court entered judgment in favor of plaintiffs for an exclusive easement for gardening purposes. Its statement of decision found both an equitable easement and an implied easement. Defendants argue the trial court abused its discretion in creating an equitable easement and an implied easement. As to the equitable easement, we conclude the trial court applied the correct legal principles and acted within its discretion. We do not reach the trial court’s alternative implied easement determination. A. Trial Court’s Findings Supporting Equitable Easement Regarding plaintiffs’ equitable easement claim, the trial court found: “It is settled law that ‘in a proper case, the courts may exercise their equity powers to affirmatively fashion an interest in the owner’s land which will protect the encroacher’s use.’ (Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 764–765.) Equitable easements are born of a court’s desire to ‘promote justice, acting through its conscience and good faith’ and typically result when a claimant innocently uses another’s property. (Hirshfield v. Schwartz, supra, 91 Cal.App.4th at 769.) To create an equitable easement, plaintiff must establish that the ‘encroachment must not be willful or negligent.’ (Tashakori v. Lakis (2011) 196 Cal.App.4th 1003, 1009.) A court ‘should 11 consider the parties’ conduct to determine who is responsible for the dispute.’ (Id.) This factor is easily established by the fact that the Kroegers themselves constructed the Retaining Wall and Fence (and any alleged encroachment). In an effort to evade this factor, Defendants claim that Plaintiffs acted willfully in occupying the Disputed Area after the Kroegers created the Disputed Area. Obviously, this argument: (1) ignores that the ‘willful’ aspect applies to the creation of the encroachment, with which Plaintiffs had no involvement at all; and (2) would swallow equitable easements entirely, since they only exist where one openly and notoriously occupies land to which another asserts title. “Plaintiffs must also establish that Defendants will not suffer irreparable harm by its creation, and that the hardship of denying the easement ‘must be greatly disproportionate to the hardship’ of allowing it. [Citations.] Here, of course, an equitable easement would result in the parties receiving what they bargained for when they purchased their respective properties. “Here, the evidence establishes that Defendants received a benefit from the 1955 transaction (which resulted in not only a new garage but also use of 304 Olive to the rear property line, which had previously been burdened by an access easement). Plaintiffs have already paid for the Disputed Area. Defendants have no legitimate use for it (Defendants have claimed a need for drainage but already received a drainage easement (without charge) which addresses all of their drainage needs). The balance of hardships leans enormously towards Plaintiffs, who would have to abandon the garden they bought and paid for and spent two years developing. “While the Court has the discretion to award compensation to Defendants if the Court grants an equitable easement, the Court determines 12 that no compensation should be awarded to Defendants. Plaintiffs have already paid a purchase price that they believed included ownership of the Disputed Area and would not have purchased 300 Olive on the same terms, if at all, had they been aware of Defendants’ claim. Defendants greatly benefited from the 1955 Transaction in that it allowed them greater use of 304 Olive, eliminating the back ‘alleyway’ access for 300 Olive and allowing them to construct a driveway and new garage. . . . Canada acknowledged that his neighbors had access rights pursuant to the easement and that it had been reconveyed, which by definition removed the burden of the easement from 304 Olive. [Citation.] Defendants did not anticipate use of the Disputed Area, and in fact submitted plans to further separate the Properties. Defendants’ geotechnical report on which Canada relied to determine his drainage needs did not include a plan to connect to the City’s storm drainage pipe in the Disputed Area. [Citation.] At most, Defendants have offered speculative use of the Disputed Area at some undisclosed future date if and when they construct an Accessory Dwelling Unit. [Citation.] “The ‘cost’ to Plaintiffs of denying the equitable easement vastly outweighs the nonexistent inconvenience to Defendants of allowing it to remain. The Disputed Area is the flattest portion of 300 Olive and the most conducive to gardening, the soil is fertile, and the loss of the Disputed Area would change the nature of the property. [Citations.] Plaintiffs would not have purchased 300 Olive if they had known the Disputed Area was not a part of it. [Citations.]” B. Legal Principles An easement gives a nonpossessory and restricted right to a specific use or activity upon another’s property. The owner of an easement is not the owner of the property but possesses the right to use another’s land for a 13 specific purpose. (Blackmore v. Powell (2007) 150 Cal.App.4th 1593, 1598.) “The land to which an easement is attached is called the dominant tenement; the land upon which a burden or servitude is laid is called the servient tenement.” (Civ. Code, § 803.) “ ‘Easements may be created by express words, by grant or reservation, usually by deed, by implication (Civ. Code, § 1104) (usually involving division of land); by necessity (3 Powell on Real Property, § 410) and by prescription (open and notorious use, continuous, hostile to owner, exclusive and under claim of right). [Citation.]’ [Citation.]” (Thorstrom v. Thorstrom (2011) 196 Cal.App.4th 1406, 1415–1416). In addition, and as relevant here, “in a proper case, the courts may exercise their equity powers to affirmatively fashion an interest in the owner’s land which will protect the encroacher’s use.” (Hirshfield v. Schwartz, supra, 91 Cal.App.4th at p. 765.) In cases in which the requirements for traditional easements are not present, courts have exercised their equity powers to grant an equitable easement. (See Tashakori v. Lakis, supra, 196 Cal.App.4th at pp. 1009–1010 [citing cases finding equitable easements].) An equitable easement may be granted when (1) the easement seeker’s use of the property is innocent and not willful or negligent, (2) the party opposing the easement will not suffer irreparable harm by the creation of the easement, and (3) the hardship of denying the easement is greatly disproportionate to the hardship of allowing it. (Id. at p. 1009.) We review the trial court’s grant of an equitable easement to plaintiffs for abuse of discretion. (Hirshfield v. Schwartz, supra, 91 Cal.App.4th at p. 771.) We defer to the trial court’s factual findings if they are supported by substantial evidence and determine whether under those facts the court abused its discretion. (Hansen v. Sandridge Partners, L.P. (2018) 14 22 Cal.App.5th 1020, 1028.) We resolve all evidentiary conflicts in favor of the judgment and determine whether the court’s decision “ ‘ “falls within the permissible range of options set by the legal criteria.” ’ [Citations].” (Hirshfield, supra, at p. 771.) “ ‘[O]ne of the essential attributes of abuse of discretion is that it must clearly appear to effect injustice. [Citations.] Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) C. Equitable Easement Was Not an Abuse of Discretion Defendants argue the trial court abused its discretion in granting plaintiffs an equitable easement because, as a matter of law, plaintiffs failed to establish any cognizable hardship that was greatly disproportionate to defendants’ hardship of losing the use of their property. They also assert the trial court abused its discretion by considering equitable factors they assert are “well beyond the relative hardships of the Parties themselves.” Defendants rely on Shoen v. Zacarias (2015) 237 Cal.App.4th 16 (Shoen), which reversed the trial court’s equitable easement grant on the basis that the defendant failed to satisfy her burden of demonstrating that the hardship of denying the easement was greatly disproportionate to the hardship of allowing it. (Id. at pp. 19, 21–22.) In Shoen, two neighbors disputed rights to a flat “patch” of land that was readily accessible only by the defendant’s property but was owned by the plaintiff. (Id. at p. 18.) The defendant put furniture on the “patch,” believing she owned the property. The plaintiff sued to reclaim the land as her property. (Ibid.) The trial court granted defendant an equitable easement allowing her to use the patch and to maintain her furniture on the patch. (Id. at pp. 18–19.) The appellate court reversed, reasoning that based on the facts, as a matter of law, the 15 hardship suffered from spending less than $300 to remove patio furniture “was not greatly disproportionate to the hardship on” the plaintiff of losing the use of land she owns. (Id. at pp. 19, 22.) Shoen explained that the balancing-the-hardships element of equitable easements requires a finding that the hardships “tip[] disproportionately in favor” of the party seeking the easement, who must prove it will suffer “a greatly disproportionate hardship from denial of the easement than the presumptively heavy hardship the owner will suffer from its grant.” (Id. at p. 20, italics omitted.) Defendants argue that in balancing the hardships, Shoen requires consideration of the “actual costs” plaintiffs would incur if they were required to cease using the Disputed Area and there is no evidence of such costs. They claim, “[O]nly such costs—and not [plaintiffs’] enjoyment of their trespassing use—can constitute ‘the imposition of a substantial hardship.’ ” In Shoen, the hardship was measured as the actual costs relating to removal of furniture from the disputed area. (Shoen, supra, 237 Cal.App.4th at p. 22.) However, we do not read Shoen to limit the consideration of hardships solely to costs to remove items from a disputed area. Shoen acknowledges that the equitable easement doctrine requires a finding that the hardship from having to cease the trespass is greatly disproportionate to the hardship caused by continuing the encroachment. (Id. at p. 19.) It also states that in making this determination courts must determine whether the “conveniences or hardships” tip disproportionately in favor of the trespasser. (Id. at p. 20.) Shoen does not require that “conveniences or hardships” be measured solely by “actual costs” to cease a trespass. The trial court found that the balance of hardships “leans enormously” in favor of plaintiffs. It determined the defendants had no legitimate use for the Disputed Area, finding that defendants already received a drainage 16 easement and that the evidence of possible future use of the Disputed Area for an accessory dwelling unit was speculative. In addition, defendants’ property benefitted from the 1955 transaction which reconveyed an access easement to 304 Olive, allowing the prior owners to build a new garage. In contrast, if an easement were not granted, the plaintiffs would have to abandon the garden they spent two years developing in the Disputed Area, which was a flat area most conducive to gardening with fertile soil. The court found plaintiffs would not have purchased 300 Olive if they had known the Disputed Area was not part of the property and that the loss of the Disputed Area would change the nature of the property. Other findings supporting the trial court’s balancing of the hardships were that plaintiffs regularly gardened in the Disputed Area from early in their ownership until December 2021, when defendants accused them of trespassing and called the police. Although Canada claimed he saw no evidence of the plaintiffs’ use of the Disputed Area, the trial court found his statement was refuted by evidence of the plaintiffs’ work in the Disputed Area, including a weed block, mulch, and vegetable stakes. It also found defendants did not use the Disputed Area with the exception of retrieving balls and toys. Additionally, Harry and Carol Reom used the Disputed Area as a garden for over 50 years, and the Kroegers built a four-foot retaining wall and a four-foot fence above the retaining wall to separate the Disputed Area from the rest of 304 Olive. Notably, although the trial court found insufficient evidence that the 1955 transaction was memorialized in a deed, it found that “the 1955 transaction and the documents cited by the Reoms, reflected an agreement between the adjacent landowners, to transfer the disputed area or at least to 17 confirm the right to exclusive use of the disputed area..” (Sic.)7 It further found defendant Canada was aware of, and promised to record, the agreement and then reneged on his promise. Defendants do not challenge these findings on appeal. Rather they appear to suggest they are not relevant to the analysis and are simply “equitable factors well beyond the relative hardships of the Parties . . . .” Defendants cite Shoen’s statement that the requirement that a trespasser establish a greatly disproportionate hardship “precludes a more open-ended and free-floating inquiry into which party will make better use of the encroached-upon land, which values it more, and which will derive a greater benefit from its use.” (Shoen, supra, 237 Cal.App.4th at p. 21.) According to defendants, the trial court improperly considered the history of the parties’ and their predecessors’ actions in determining whether to grant an equitable easement. We disagree that the trial court improperly considered the history and conduct of the parties and their predecessors. Unlike in Shoen, here the trial court determined the evidence supported a finding that there was an 7 Plaintiffs argue in their respondents’ brief that Shoen is inapposite because here the trial court found the Kroegers conveyed equitable title to the Disputed Area to the late Reoms. Plaintiffs claim that based on this finding, the defendants lacked the right to possession enjoyed by the owner in Shoen. Defendants’ reply brief mischaracterizes plaintiffs’ argument as being based on a purported finding by the trial court that the plaintiffs, rather than the late Reoms, hold equitable title to the Disputed Area and then argue the trial court was never asked to make, and never made, a finding that the plaintiffs hold equitable title to the Disputed Area. They also argue that the trial court’s denial of plaintiffs’ quiet title claim precludes any argument that the plaintiffs hold equitable title to the Disputed Area. We agree with defendants that the trial court’s denial of plaintiffs’ quiet title claim is inconsistent with any arguable claim that plaintiffs hold equitable title to the Disputed Area. However, we do not understand that plaintiffs are making such a claim. 18 agreement between the predecessor landowners to transfer to, or, at least, allow exclusive use of, the Disputed Area by 300 Olive. The 1955 transaction provided a benefit to 304 Olive through the reconveyance of an access easement held by 300 Olive, which allowed the prior owners of 304 Olive to construct a driveway and new garage. Defendants do not dispute these findings, and they are supported by substantial evidence. We find these factors are not irrelevant considerations for a court sitting in equity. (See Hirshfield v. Schwartz, supra, 91 Cal.App.4th at pp. 769–770 [policy underlying creation of equitable easement is to “promote justice” under the particular circumstances]; Linthicum v. Butterfield (2009) 175 Cal.App.4th 259, 262, 266–267 [affirms trial court’s grant of equitable easement and states that in exercising its discretion trial court must consider conduct of parties in light of relative harms to the parties of granting or withholding an easement].) Moreover, they bear on the balancing-of-the-hardships element of equitable easements because they relate to the extent of harm defendants will suffer from granting the easement. The trial court correctly considered the benefits conveyed to the 304 Olive property from the 1955 transaction. We reject defendants’ argument that, as a matter of law, plaintiffs failed to establish any cognizable hardship that was greatly disproportionate to defendants’ hardship of losing the use of their property. The trial court acted within its discretion in finding that the hardship to plaintiffs of denying the easement was greatly disproportionate to the hardship of allowing it. The trial court properly considered the unique facts of the 1955 transaction, the conduct of the adjacent landowners since 1955, and that Canada agreed to record the agreement and then reneged. (See Richardson v. Franc (2015) 233 Cal.App.4th 744, 758–759 [finding grant of irrevocable license for landscaping, lighting, and irrigation within an easement in accordance with 19 20-year course of conduct of parties and predecessors is within trial court’s broad equitable discretion].) We might reach a different conclusion if the only evidence were that the Disputed Area was first used as a garden, beginning in 2019 when the plaintiffs purchased the property. However, here the evidence shows the following: The Disputed Area has been walled off and fenced off from 304 Olive for 70 years; the predecessor owners of 304 Olive agreed to transfer the Disputed Area to 300 Olive for use as a garden in exchange, in part, for a reconveyance of an alleyway easement that allowed 304 Olive’s owner to build a larger garage; the prior owners of 300 Olive used the Disputed Area as a garden throughout their ownership; the plaintiffs used the Disputed Area as a garden, until they were reported to the police as trespassers; and defendant Canada was given a document reflecting the transaction, which he said he would record but then reneged. Defendant also contends the trial court abused its discretion in finding defendants had “ ‘no legitimate use’ ” for the Disputed Area because it ignored evidence that defendants’ storm pipe runs through the area. Defendants refer to Canada’s uncontroverted testimony that flags placed by the City of Piedmont Department of Public Works reflect that the storm drainage pipe runs through the Disputed Area. The trial court is not required to credit even uncontroverted testimony. (Hinrichs v. Melton (2017) 11 C