LEGACY FIRST HOMES, LLC VS. MANOJ BHATNAGAR, ET AL

Here, if the Bhatnagar Cross-Complainants meet their burden of proving the probable validity of either of their real property claims, the Motion must be denied. Otherwise, it must be granted.

The defective Declaration of Omar Galindo.

The primary piece of “evidence” supporting Plaintiff’s moving papers is the Declaration of Omar Galindo, which is not executed under penalty of perjury, and therefore has “no evidentiary value.” (Code

June 5, 2026 Law and Motion Calendar PAGE 10 HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ Civ. Proc. § 2015.5; Kulshrestha v. First Union Comm'l Corp. (2004) 33 Cal.4th 601, 612; ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 217.)

The Court assumes that the above-referenced defect in the Galindo declaration is due to an inadvertent clerical error. Thus, prior to the hearing, Plaintiff shall e-file (and email a courtesy copy to Dept20@sanmateocourt.org) a corrected Declaration of Omar Galindo with a code compliant declaration under penalty of perjury per Code of Civ. Proc. Section 2015.5, correcting this error. Failure to do so will result in Plaintiff’s Motion to Quash being denied with the Court modifying the balance of this tentative. If this error is cured, then the below tentative ruling would still apply.

The Bhatnagars have not shown a “probable validity” of their “prescriptive easement” claim.

A prescriptive easement is established where the claimant proves “use of the property, for the statutory period of five years, which use has been (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right.” (Wang v. Peletta (2025) 112 Cal.App.5th 478, 486 [citing Main Street Plaza v. Cartwright & Main, LLC (2011) 194 Cal.App.4th 1044, 1054].) Such an easement provides not title, but the right to make a specific use of someone else's property. (Id.) Prescriptive easements may not arise from the exclusive use of another’s property. (Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, 1305-06; CACI 3901.)

Here, the Bhatnagars have not shown a probability of prevailing, because the evidence suggests that Plaintiff has been excluded from using the disputed portion (the encroached-upon portion) of Plaintiff’s property. (See Silacci v. Abramson (1996) 45 Cal.App.4th 558, 562-565 (prescriptive easement not found where defendant fenced in a portion of plaintiff’s yard and excluded plaintiff from using that portion of the yard); Hansen v. Sandridge Partners, L.P. (2018) 22 Cal.App.5th 1020, 1033-1034 (prescriptive easement not found where neighbor planted ten acres of trees on owner’s property, thereby preventing owner from using that portion of the owner’s land).

While the facts here differ somewhat, since this case involves a retaining wall, the same rationale underlying the holdings in Silacci and Hanse appears to apply—namely, the Bhatnagars have used/occupied a portion of Plaintiff’s property for their retaining wall, thereby precluding Plaintiff from using that portion of Plaintiff’s land. The retaining wall itself prevents Plaintiff from using that portion of the actual land upon which the retaining wall sits. This is not a shared use. Since Plaintiff is prevented from using the encroached-upon portion of Plaintiff’s property, the Bhatnagars’ use of it appears to amount to adverse possession under the guise of a “prescriptive easement” that excludes Plaintiff from entering or making any use of that portion of Plaintiff’s land. (Mehdizadeh v.

Mincer (1996) 46 Cal.App.4th 1296, 1304.) Because this appears to constitute an exclusive use rather than a shared use, the Bhatnagars have not shown a likelihood (51%) of prevailing on the prescriptive easement claim.

The Bhatnagars have not shown a “probable validity” of their “equitable easement” claim.

A trial court has discretion to grant an equitable easement if the person seeking the easement shows three things: the trespass was “innocent” rather than “willful or negligent”; the easement will not cause irreparable injury to the public or the property owner; and the hardship to the trespasser from denying the easement is “greatly disproportionate” to the property owner's from continuance of the easement. (Wang v. Peletta (2025) 112 Cal.App.5th 478, 491 [citing Shoen v. Zacarias (2015) 237 Cal.App.4th 16, 19.) The court may not grant an equitable easement unless all three of these prerequisites are established. (Id.; Hansen v. Sandridge Partners, L.P. (2018) 22 Cal.App.5th 1020, 1028.) Of the three elements, the requirement that the encroachment be “innocent” rather than willful or negligent, is the most important.

June 5, 2026 Law and Motion Calendar PAGE 11 HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ (Id.) Courts “approach the issuance of easements with an abundance of caution and resolve doubtful cases against the easement.” (Id.)

Here, the evidence suggests that the Bhatnagars have less than a 51% chance of demonstrating that their trespass was “innocent” rather than “willful or negligent.” The May 22, 2026 Declaration of Manoj Bhatnagar states that at all relevant times, Bhatnagar believed the retaining wall sat entirely on the Bhatnagars’ property, and that, based on Manoj Bhatnagar’s 2003 conversation with a San Carlos City official, the wall did not require a permit so long as it did not exceed four feet in height. (Bhatnagar Decl., ¶ 5.) Bhatnagar’s declaration also states that he had no knowledge of any code enforcement actions against any of his neighbors. (Id., ¶ 6.)

As noted, however, even if Bhatnagar’s trespass was not willful, a negligent trespass would defeat the equitable easement claim. (Shoen v. Zacarias, supra, 237 Cal.App.4th at 19.) Bhatnagar offers no evidence that he ever requested or obtained a permit for the wall, nor ever conducted a survey to verify that that the wall was not encroaching onto the neighbor’s property, even though he believed that it sat essentially right on the property line.

Plaintiff offers evidence that around the same time that Bhatnagar initially built the retaining wall (roughly 2002-2003), the City initiated a Code enforcement proceeding against Bhatnagar’s neighbor for constructing an un-permitted retaining wall, and the City instructed the Bhatnagars’ neighbor to stop work, to remove the wall, to obtain a property survey, and to rebuild it with proper engineering and permits and a proper set-back. (Dec. 9, 2025 Galindo Decl., ¶¶ 9, 10; Ex. E, F, G.) Plaintiff contends that, given the timing of this 2002-2003 enforcement action by the City against the Bhatnagars’ neighbor coincided with the Bhatnagars’ erection of the retaining wall at issue, it suggests that Bhatnagar knew or should have known that a permit, survey, soils report, engineering plans, and a two-foot setback were required.

Plaintiff argues that the Bhatnagars’ act of building the retaining wall without a permit shows a willful disregard of known requirements rather than an innocent or inadvertent mistake. (Id.)

The Court cannot say with certainty whether the Bhatnagars will succeed to showing that their trespass was “innocent” rather than “willful or negligent.” However, based on the evidence before the Court, for purposes of this Motion, the Court finds that Bhatnagars have not shown a “probable validity” of their equitable easement cause of action.

Plaintiff’s request for attorney’s fees and costs is DENIED.

Code Civ. Proc. § 405.38 states:

The court shall direct that the party prevailing on any motion under this chapter be awarded the reasonable attorney's fees and costs of making or opposing the motion unless the court finds that the other party acted with substantial justification or that other circumstances make the imposition of attorney's fees and costs unjust.

Plaintiff seeks an award of attorney’s fees and costs against the Bhatnagars, arguing that they recorded and maintained the lis pendens without substantial justification, because their easement claim(s) purportedly lack merit. Although the Court finds that the Bhatnagars have not shown probable validity of their real property claims, and therefore the Court is granting the Motion to Expunge, the Court does not find the Bhatnagars’ cross-claims to be so clearly lacking in merit to support an inference of bad faith. Under the circumstances, the Court does not agree that the Bhatnagars acted without substantial justification, or that an award of fees and costs would be appropriate.

June 5, 2026 Law and Motion Calendar

HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________

In light of the foregoing, Plaintiff’s request that Defendants provide an undertaking is DENIED AS MOOT.

To address the Declaration of Omar Galindo, counsel are to appear. The tentative is automatically deemed contested with no further notice required, and the Court will address preparation of the Order at the hearing.