Robert Cooper, et al. v. Paul Hatalsky

When ruling on a request for a preliminary injunction, the Court considers two interrelated factors: (1) the likelihood that the plaintiff will prevail on the merits; and (2) the relative balance of harm that is likely to result from the granting or denial of the interim injunctive relief. (White v. Davis (2003) 30 Cal.4th 528, 554; Robbins v. Superior Court (1985) 38 Cal.3d 199, 206

[balance of harms and a “reasonable probability that the plaintiffs will prevail on the merits”].) “The trial court’s determination must be guided by a ‘mix’ of the potential-merit and interimharm factors; the greater the plaintiff’s showing on one, the less must be shown on the other to support an injunction.” (Butt v. State of California (1992) 4 Cal.4th 668, 678 (Butt).)

While a trial court has broad discretion to grant or deny a preliminary injunction request, “[i]t must exercise its discretion ‘in favor of the party most likely to be injured.’ [Citation.]” (Robbins, supra, 38 Cal.3d at p. 205; cf. Butt, supra, 4 Cal.4th at p. 678 [regardless of the balance of interim harm, there must be some possibility that the plaintiff would ultimately prevail on the merits].) “The ultimate goal of any test to be used in deciding whether a preliminary injunction should issue is to minimize the harm which an erroneous interim decision may cause. [Citation.]” (IT Corporation v. County of Imperial (1983) 35 Cal.3d 63, 73.)

II. DISCUSSION

A.

Background

Plaintiffs own real property located at 2685 Johnson Avenue in San Luis Obispo (the Cooper Property). (Cmp., ¶ 1.) Defendant owns real property located at 1364 San Marcos Court in San Luis Obispo (the Hatalsky Property). (Id., ¶ 2.) The Cooper Property includes a private driveway that provides access from Johnson Avenue. (Id., ¶ 9.) The parties’ properties are adjacent to one another. (See Id., ¶ 11.)

The Wards sold the Cooper Property to Plaintiffs on December 31, 2003. (Cmp., ¶ 12.) The Wards sold the Hatalsky Property to Jerry M. Reiss and Collette M. Reiss on July 23, 1986. (Id., ¶ 13.) Jerry and Collette Reiss sold the Hatalsky Property to Frank Taylor on December 30, 1998. (Id., ¶ 14.) Defendant and Julie Hatalsky purchased the Hatalsky Property in June 2023 from Frank and Marilee Taylor. (Hatalsky Dec., ¶ 2.) As a condition of Defendant’s purchase from the Taylors, Defendant assumed obligations of Optionor pursuant to a pre-existing Option Agreement dated December 29, 1998, between the Taylors, as Optionor and Jerry M. Reiss and Collette M. Reiss, as Optionees. (Id., ¶ 3, Ex. A.) The Option Agreement granted the Reisses a portion of the Hatalsky Property subject to city approval of a lot split. (Ibid.)

In December 2003 the Wards granted an easement over the Cooper Property to Jerry and Collette Reiss. (Hatalsky Dec., ¶ 5, Ex. B.) The easement is described in part, as follows:

A non-exclusive easement, for purposes of ingress, egress, driveway and underground utilities, over and through that property located at 2685 Johnson Avenue in the City of San Luis Obispo, San Luis Obispo County, State of California, described as a strip 19 feet wide and 255 feet in length running from the westerly boundary of Johnson Avenue along the southerly boundary of Parcel C of parcel Map SLO-80-121, according to the map recorded September 17, 1982 in Book 32, Page 73 of Parcel Maps in the office of the County Recorder of said County.

Said grant of easement shall be in gross, until such time as grantors, or either of them, acquire an ownership interest in the adjacent real property, described as: SEE EXHIBIT “A” ATTACHED HERETO

At which time said easement shall become appurtenant to the described adjacent real property.

(Cmp., Ex. 1, Grant of Easement.)

The City of San Luis Obispo denied the Reisses application for lot split in 2006 and the Option Agreement expired in 2007. (Hatalsky Dec., ¶¶ 6, 7.) A Quitclaim of Option Rights was executed by the Reisses on January 24, 2008, conveying to Defendant and the Harbaugh Family Trust all of their right, title, and interest in real property under the Option Agreement. (Id., ¶ 8, Ex. C.) Collette Reiss executed an Assignment of Grant of Easement in favor of Defendant on November 1, 2021. (Id., ¶ 11.)

B. Likelihood to Prevail on the Merits

1. Abandonment of Easement

Plaintiffs assert they are likely to succeed on the merits. Plaintiffs contend that no appurtenant easement was ever formed. Specifically, the 2003 instrument created only an easement in gross, with appurtenant status contingent on the Reisses’ acquisition of the adjacent property. Because that acquisition never occurred, no appurtenant easement arose. (See Cooper Dec., ¶ 5.)

Plaintiffs argue that facts in this case support the assertion that Reiss’s in gross easement rights were abandoned and extinguished. First, Plaintiffs have had exclusive possession of the driveway since 2003. (Cooper Dec., ¶ 2.) Second, following the City’s denial of Jerry Reiss’s application for lot split, Jerry Reiss advised Plaintiff “that he had ‘given up’ on using the driveway for access; that he ‘wanted to be done with it’; and that he had ‘completely given up on the idea of using the driveway for access.’ ” (Cooper Dec., ¶¶ 12, 13, Ex. 3; 16.)

However, “[w]hen an easement is created by an express or implied grant or reservation, nonuse alone does not terminate the easement, regardless of the period of nonuse, in the absence of evidence of a clear, decisive, and unequivocal intent to abandon by the owner of the easement.” (6 Miller and Starr, Cal. Real Estate (4th ed. 2025) § 15:79 [citations omitted].)

Defendant contends Plaintiffs fail to prove clear intent to abandon the Easement. Defendant argues Plaintiffs “abandonment theory rests on vague hearsay statements allegedly made by Jerry Reiss in late 2008 or early 2009 to the effect that he had ‘given up’ on the idea[] of using the Cooper Property driveway for access. Even if admissible and taken at face value, these statements in no way express a clear intent to abandon a valuable property right in the form of the Easement, as required under California law.” (Opp., p. 12, ll. 17-21.) Further, “[d]eciding to

forgo a specific development project is entirely unlike permanently abandoning a recorded legal right.” (Id., ll. 24, 25.)

Mr. Reiss’s statement, without more, does not establish the clear and unequivocal intent required to constitute abandonment of easement.

2. Assignment of Easement in Gross

Plaintiffs assert that the Assignment of the Reiss Gross Easement is invalid because the easement was established as a personal right in gross for Jerry and Collette Reiss and was not intended to be transferable.

The Court is not persuaded. Here, nothing in the easement in gross limits or prevents transfer or assignment. Moreover, Plaintiffs have not identified language in the 2003 instrument that renders the assignment improper. (See 6 Miller and Starr, Cal. Real Estate (4th ed. 2025) § 15:7 [“Although an easement in gross can be assigned, transferred, and inherited, it does not pass automatically with a conveyance of real property because it is not appurtenant to any property. An owner of an easement in gross intending to transfer the easement must do so intentionally and expressly.”].)

3. 1982 Easement for Common Driveway

Defendant argues that this matter is far more complicated than merely an easement that appears to be invalid on its face. Defendant declares that he “recently learned that the easement corridor has been subject to a recorded city-required common driveway agreement since 1982. On April 21, 1982, the City of San Luis Obispo entered into an Agreement Creating Easement for Common Driveway with the then-owners of Parcels A, B, and C of Parcel Map SLO 80-121, recorded September 13, 1982 as Document No. 38089. The agreement states the easement ‘is superior and paramount to the rights of any of the parties in the respective servient estates so created, and that it is a covenant running with the land.’ The Cooper Property (2685 Johnson Avenue) is Parcel C of Parcel Map SLO 80-121.” (Hatalsky Dec., ¶ 18, Ex. H.)

Because Plaintiffs filed no reply, they leave the 1982 Agreement, its effect on Plaintiffs’ claims, and the merit of Defendant’s arguments unaddressed.

4.

Conclusion

In light of the 1982 Agreement Creating Easement for Common Driveway by the City of San Luis Obispo and Rob and Jacqueline Rossi, the Grant of Easement, and Assignment of Grant of Easement, and the lack of a reply, the Court finds, for the purposes of this order to show cause, that Plaintiffs have not shown a reasonable probability of prevailing on the claims asserted.

C. Balance of Harms

“ ‘The ultimate goal ... in deciding whether a preliminary injunction should issue is to minimize the harm which an erroneous interim decision may cause.’ [Citation.]” (White, supra, 30 Cal.4th at p. 554.) Although a trial court has broad discretionary powers to grant or deny a request for a preliminary injunction, “[i]t must exercise its discretion ‘in favor of the party most likely to be injured.’ [Citations.]” (Robbins, supra, 38 Cal.3d at p. 205.)

Plaintiffs bear the burden of establishing that the harm they will suffer is irreparable and is significantly greater than the harm to Defendants. “Moreover, the threat of ‘irreparable harm’ must be imminent as opposed to a mere possibility of harm sometime in the future: ‘An injunction cannot issue in a vacuum based on the proponents’ fears about something that may happen in the future. It must be supported by actual evidence that there is a realistic prospect that the party enjoined intends to engage in the prohibited activity.’” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2025) ¶ 9:508, citing Korean Philadelphia Presbyterian Church v. California Presbytery (2000) 77 Cal.App.4th 1069, 1084.)

Plaintiffs contend that Plaintiffs will be irreparably harmed absent immediate injunctive relief. Plaintiff states the driveway is narrow, used exclusively by his family and is not suitable for increased traffic or construction access. (Cooper Dec., ¶ 20.) Plaintiff additionally states that construction vehicles and equipment would access the Cooper Property, leading to physical alterations, potential risks to the Coopers’ safety, and loss of exclusive possession of the property. (Id., ¶ 21.)

Based on the evidence presented, the Court finds that any harm Plaintiffs may face if a preliminary injunction is not issued is merely speculative. Plaintiffs have not demonstrated that the threat of harm is immediate, relying instead on assumptions of potential harm that may occur in the future.

On balancing the potential merit of the claims and the interim harm to the parties, the Court concludes that Plaintiffs fail to show they are entitled to a preliminary injunction.

ORDER (PROPOSED)

The Court denies Plaintiffs’ request for a preliminary injunction and discharges the Order to Show Cause.

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