Filed 7/24/26 EKO Substance Three LLC v. Kasaba CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE
EKO SUBSTANCE THREE B343408
LLC,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. 22SMCV00709)
v.
MICHAEL KASABA et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Edward B. Moreton, Jr., Judge. Reversed and
remanded with directions.
Macey A. Chan for Plaintiff and Appellant.
Levy, Small & Lallas, Leo D. Plotkin and Mark D. Hurwitz
for Defendants and Respondents.
_________________________
Plaintiff EKO Substance Three LLC (EKO) appeals a
judgment of dismissal entered in favor of defendants Michael
Kasaba and Michael E. Kasaba LLC (MEK).1 In granting
defendants’ motion for judgment on the pleadings, the trial court
determined EKO’s claims were premised on recorded easements
that had been extinguished by an intervening foreclosure sale.
EKO does not challenge this conclusion. Instead, EKO contends
the court abused its discretion by denying the company’s request
to amend its complaint to allege claims based on a prescriptive
easement over an improved roadway crossing MEK’s property.
We conclude EKO has demonstrated a reasonable possibility that
it can amend its pleadings to state viable claims based on a
prescriptive easement. We therefore reverse and remand with
directions to grant leave to amend.
BACKGROUND
1. The Complaint
In October 2019, EKO purchased real property on Borna
Drive in Malibu. The complaint alleges the property is benefitted
by two recorded 40‑foot‑wide easements running across the
adjacent parcel owned by MEK. An improved paved road lies
1 For reasons that are not entirely clear, Michael Kasaba
contends in his respondent’s brief that MEK “is not a party to
this appeal.” This is incorrect. The trial court entered a
judgment of dismissal as to the entire complaint against Kasaba
and MEK, and EKO took its appeal from that judgment.
Regardless of whether MEK chooses to participate in the appeal,
our reversal of the judgment means EKO will have the
opportunity to amend its complaint against both Kasaba and
MEK.
2
within the boundaries of the easement area and historically has
provided access to EKO’s property.
The complaint alleges defendants engaged in “wrongful,
deceptive, unauthorized and illegal conduct” with respect to the
easements and the improved road. Among other things, EKO
alleges defendants submitted land‑use applications that
misrepresented the location of the road, failed to disclose the
easements, and depicted a proposed residence footprint that
encroaches on both the easements and the road. The complaint
further alleges defendants placed landscaping, structures, and
other improvements within the easement area and engaged in
unpermitted grading.
Based on these allegations, EKO asserted causes of action
for continuing and permanent nuisance, trespass, slander of title,
quiet title, intentional interference with prospective economic
advantage, declaratory relief, and negligence. Each cause of
action is premised on EKO’s claimed rights in the recorded
easements and the improved road. The complaint also alleges
that EKO has “rights either by grant of legal title, adverse
possession and/or by prescriptive easement over, under, along
and across the Defendants’ land.”
2. Motion for Judgment on the Pleadings
Defendants moved for judgment on the pleadings, arguing
a 2009 trustee’s sale had extinguished the recorded easements as
a matter of law. In support, defendants requested judicial notice
of publicly recorded documents2 showing the following: In
2 See Yvanova v. New Century Mortgage Corp. (2016) 62
Cal.4th 919, 924, fn. 1 (“The superior court granted defendants’
request for judicial notice of the recorded deed of trust,
3
January 2005, the prior owner of MEK’s parcel encumbered the
property with a deed of trust in favor of Washington Mutual
Bank, FA. Nearly three years later, in December 2007, the prior
owner granted two 40-foot wide easements across the MEK
parcel to a prior owner of EKO’s parcel, providing roadway access
and utility rights—the same recorded easements referenced in
EKO’s complaint. The prior owner later defaulted on his
mortgage, and, in January 2009, the trustee completed a
foreclosure sale, with the deed upon sale conveying the MEK
parcel to the foreclosing beneficiary.
Under settled California law, defendants argued the
foreclosure sale extinguished all easements and encumbrances
recorded after the 2005 deed of trust—including the easements
recorded in December 2007—and the purchaser at the 2009
trustee’s sale therefore took title to the MEK parcel free and clear
of any such junior interests.3 Because each of EKO’s causes of
action depended on the existence of valid and enforceable
easement rights across the MEK parcel, defendants argued the
complaint failed to state a cognizable claim and should be
dismissed in its entirety.
assignment of the deed of trust, substitution of trustee, notices of
default and of trustee’s sale, and trustee’s deed upon sale. The
existence and facial contents of these recorded documents were
properly noticed in the trial court under Evidence Code
sections 452, subdivisions (c) and (h), and 453.”).
3 See San Francisco Design Center Associates v. Portman
Companies (1995) 41 Cal.App.4th 29, 45 (“when property is sold
under a trust deed, the purchaser obtains title free and clear of
all encumbrances subsequent to the deed of trust”); R-Ranch
Markets #2, Inc. v. Old Stone Bank (1993) 16 Cal.App.4th 1323,
1328 (same).
4
EKO opposed the motion, attacking the merits of
defendants’ extinguishment argument and requesting leave to
amend in the event the trial court found the complaint deficient.
With respect to leave to amend, EKO asserted “facts relevant to
[its] allowed use of the Easement Area via a prescriptive
easement and/or equitable easement can be added.” However,
EKO did not state what facts it could or would add to support
this theory.
The trial court granted the motion, concluding the 2009
foreclosure had extinguished the recorded easements and EKO
therefore had no enforceable rights in the easement area to
support its causes of action. As for leave to amend, the court
dismissed the complaint’s conclusory reference to a “prescriptive
easement” as “just a raw allegation,” and denied the request for
leave because EKO’s opposition had not shown what facts it could
allege to support the new theory.4
3. EKO’s Motion for New Trial
Following entry of judgment, EKO moved for a new trial,
arguing (a) defendants had unfairly shifted their defense after
having “acknowledged the existence” of the recorded easements
in their written discovery responses, and (b) the trial court’s
refusal to consider EKO’s proposed amendment constituted an
irregularity in the proceedings and an error of law. In a
supporting declaration, EKO’s managing member Carlos Gabriel
Morales-Olivares explained he had been unaware of the
4 The court rejected EKO’s offer to present supporting factual
allegations at the hearing, explaining, “I don’t think it would be
fair or in accordance with the rules for me to allow you to just
orally throw out some facts today without the other side having
opportunity to respond to it.”
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extinguishment issue until defendants moved for judgment on
the pleadings and, had the defense been raised earlier, EKO
“could have readily amended the complaint to assert a separate
cause of action for a prescriptive easement over the land owned
by MEK, namely over the existing Improved Road alleged in the
Complaint . . . which crosses through the MEK property and
which has been used by [EKO], other landowners in the area[,]
and their predecessors for decades, and without the permission of
Defendants or Defendants’ predecessors.”
The trial court denied the motion without a hearing. This
timely appeal followed.
DISCUSSION
1. Standard of Review and Leave to Amend
“In the case of either a demurrer or a motion for judgment
on the pleadings, leave to amend should be granted if there is any
reasonable possibility that the plaintiff can state a good cause of
action.” (Virginia G. v. ABC Unified School Dist. (1993) 15
Cal.App.4th 1848, 1852, citing Okun v. Superior Court (1981) 29
Cal.3d 442, 460.) Thus, when the trial court dismisses an action
at the pleading stage, we must “decide whether there is a
reasonable possibility that the defect can be cured by
amendment: if it can be, the trial court has abused its discretion
and we reverse; if not, there has been no abuse of discretion and
we affirm. [Citations.] The burden of proving such reasonable
possibility is squarely on the plaintiff.” (Blank v. Kirwan (1985)
39 Cal.3d 311, 318 (Blank).) To satisfy this burden, the plaintiff
“must show in what manner he can amend his complaint and
how that amendment will change the legal effect of his pleading.”
(Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636.) This
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“showing can be made for the first time to the reviewing court.”
(Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93
Cal.App.4th 700, 711; accord, Careau & Co. v. Security Pacific
Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386
[reasonable possibility showing “need not be made in the trial
court so long as it is made to the reviewing court”].)
2. EKO Has Demonstrated a Reasonable Possibility of
Alleging the Existence of a Prescriptive Easement
Before we consider EKO’s showing, we must review the law
governing prescriptive easements. A prescriptive easement is an
easement acquired through use of another’s property, rather than
by grant or reservation. “To establish a prescriptive easement
the party claiming it must show use of the property that has been
‘open, notorious, continuous, and adverse for an uninterrupted
period of five years.’ ” (Husain v. California Pacific Bank (2021)
61 Cal.App.5th 717, 725 (Husain), quoting Warsaw v. Chicago
Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570 (Warsaw).) The
“ ‘term “adverse” in this context is essentially synonymous with
“hostile” and “ ‘under claim of right.’ ” [Citations.] A claimant
need not believe that his or her use is legally justified or
expressly claim a right of use for the use to be adverse.
[Citations.] Instead, a claimant’s use is adverse to the owner if
the use is made without any express or implied recognition of the
owner’s property rights.’ ” (McBride v. Smith (2018) 18
Cal.App.5th 1160, 1181.) In other words, “ ‘[a]dverse use’ means
only that the claimant’s use of the property was made without
the explicit or implicit permission of the landowner.” (Aaron v.
Dunham (2006) 137 Cal.App.4th 1244, 1252 (Aaron).) “The
existence or nonexistence of each of the elements of a prescriptive
easement is a question of fact.” (Husain, at p. 726.)
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EKO contends its complaint “can be amended to allege that
[EKO] and its predecessors in interest’s use of the Easement
Area for ingress, egress, roadway purposes and utilities has been
open, notorious, continuous and adverse for at least five years,”
and these facts, if proven, would be sufficient to establish a
prescriptive easement and to support the causes of action
asserted in the complaint. We agree. As discussed, in a
declaration offered in support of its motion for new trial, EKO’s
managing member Morales-Olivares explained that had
defendants challenged the validity of the recorded easements
earlier, EKO “could have readily amended the complaint to assert
a separate cause of action for a prescriptive easement over the
land owned by MEK, namely over the existing Improved Road
alleged in the Complaint . . . which crosses through the MEK
property and which has been used by [EKO], other landowners in
the area[,] and their predecessors for decades, and without the
permission of Defendants or Defendants’ predecessors.” (Italics
added.) The declaration demonstrates a reasonable possibility
that EKO can amend its complaint to allege facts satisfying each
element of a prescriptive easement, thus curing the pleading
defect arising from extinguishment of the recorded easements.
(See Blank, supra, 39 Cal.3d at p. 318.)
Husain is instructive. The trial court in Husain entered a
judgment establishing a prescriptive easement for an apartment
building owner over portions of an adjacent property, including a
shared driveway, parking spaces, a garbage area, and a garden.
(Husain, supra, 61 Cal.App.5th at pp. 723–725.) For over 50
years the two properties had been held in common ownership,
during which time the apartment building tenants’ use of the
servient property had been permitted by the common owner. (Id.
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at pp. 720–722, 728–729.) Later, the properties were sold to
different owners in separate trustee sales, after which, the bank
that acquired the apartment building and its tenants continued
to use the neighboring property openly, continuously, and
without ever requesting permission from the new owner of the
servient property. (Id. at pp. 721–723.) On appeal, the servient
property owner argued the use was not hostile because it had
originated with the prior common owner’s permission. (Id. at
p. 728.) The reviewing court rejected the contention, reasoning
that once the properties were severed into separate ownership,
the absence of any permission from the new servient owner
rendered the continued use adverse, and because the use openly
continued for more than five years, it had been sufficient to put
the new owner on constructive notice that it needed to take legal
action to prevent the creation of a prescriptive easement. (Id. at
pp. 727–732.)
As in Husain, the record supports a reasonable possibility
that EKO can fairly allege use of the improved road over MEK’s
property has been open, notorious, continuous, and adverse for an
uninterrupted period of five years. (See Husain, supra, 61
Cal.App.5th at p. 725.) According to the Morales-Olivares
declaration, the improved road “crosses through the MEK
property” and has been used by EKO, other area landowners, and
their predecessors “for decades.” The complaint itself alleges the
improved road runs within the easement area across MEK’s
property, and defendants’ proposed development and physical
encroachments seriously and materially intrude upon both the
easement area and the improved road. Together, the declaration
and existing allegations describe a visible, permanent roadway
used for ingress and egress by landowners over an extended
9
period—precisely the kind of use that would impart notice to the
servient property owner that legal action must be taken to
prevent the creation of a prescriptive easement. (See id. at
pp. 723–725, 727 [tenants’ daily use of driveway, parking spaces,
and garbage area was “substantial and constant” and plainly
visible to successor owner of servient parcel, such that it
imparted necessary “constructive notice” of adverse use sufficient
to create a prescriptive easement].)
As for duration, although the declaration does not specify a
precise start date, the reference to “decades” of use by
predecessors in interest, combined with the undisputed fact that
the trustee’s sale occurred in January 2009, readily supports a
reasonable inference that adverse use continued for at least five
uninterrupted years following extinguishment of the recorded
easements. Thus, at the pleading stage, EKO can fairly allege
that from a date at least five years before the filing of the
complaint—and specifically for at least five years following the
2009 foreclosure sale—EKO, its predecessors, and neighboring
landowners continuously used the improved road for ingress and
egress to their respective properties. (See Husain, supra, 61
Cal.App.5th at p. 731 [where new owner of dominant parcel
continued to use property as had been permitted before servient
parcel was sold to a separate owner, such use was sufficiently
“open, notorious, continuous, and hostile for more than five
years” to establish prescriptive easement against new owner].)
Finally, the declaration states EKO and other landowners
have used the improved road “without the permission of
Defendants or Defendants’ predecessors.” As explained in
Husain, use made without the explicit or implicit permission of
the landowner is adverse use. (Husain, supra, 61 Cal.App.5th at
10
pp. 726, 730; accord, Aaron, supra, 137 Cal.App.4th at p. 1252
[“ ‘[a]dverse use’ means only that the claimant’s use of the
property was made without the explicit or implicit permission of
the landowner”].) Nevertheless, defendants argue the adverse
use element is somehow negated by EKO’s acknowledgment in its
opening brief that there was no “necessity to enforce a
prescriptive easement by way of a cause of action in the
Complaint” until the extinguishment defense surfaced. We
disagree. This statement—which appears to have been drawn
from the Morales-Olivares declaration—merely explains why
EKO did not plead a prescriptive easement claim earlier; it does
not concede that the underlying use was permissive. A party
may be unaware of the need to assert a prescriptive right, or it
may rely on recorded easements believed to be valid while
simultaneously using the property without permission. (See, e.g.,
Husain, at p. 731 [continued use as had been earlier permitted
was adverse].) The focus for prescriptive purposes is on the
character of the use as it would appear to the owner of the
servient tenement—not on the claimant’s litigation strategy.
(See id. at p. 726; see also Warsaw, supra, 35 Cal.3d at p. 572
[“Whether the use is hostile or is merely a matter of neighborly
accommodation, however, is a question of fact to be determined in
light of the surrounding circumstances and the relationship
between the parties.”].)
Defendants also seem to contend EKO’s use of the
improved road could never have “ ‘ripen[ed]’ ” into a prescriptive
easement because they posted a sign along the road on June 27,
2024 warning that passage was by permission and subject to
11
control of the owner “pursuant to Civil Code section 1008.”5 The
argument misses the point. The prescriptive easement EKO
seeks to allege is not based on use occurring after the sign was
posted, but rather on years of earlier adverse use that predates
defendants’ 2019 acquisition of the MEK property. If the
prescriptive period ran to completion before defendants posted
the sign—an inference we must accept at the pleading stage—
then the sign came too late to defeat a right that had already
vested. Civil Code section 1008 interrupts the running of a
prescriptive period going forward—it does not extinguish a
prescriptive easement that has already ripened. If anything, the
sign’s posting in June 2024 seems to confirm that defendants
themselves recognized the need to interrupt whatever rights
might be claimed through EKO’s and other landowners’ long-
standing use of the improved road.
Defendants argue granting leave to amend would invite a
sham pleading, because EKO could not simply omit the recorded
easement allegations that rendered its complaint defective
without explanation. We are not persuaded. The sham pleading
doctrine bars an amended complaint that contradicts the factual
allegations of the original in order to plead around a defect. (See
Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425–426.)
But the complaint’s core factual allegations—namely, the
5 Civil Code section 1008 provides: “No use by any person or
persons, no matter how long continued, of any land, shall ever
ripen into an easement by prescription, if the owner of such
property posts at each entrance to the property or at intervals of
not more than 200 feet along the boundary a sign reading
substantially as follows: ‘Right to pass by permission, and
subject to control, of owner: Section 1008, Civil Code.’ ”
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existence of the improved road, defendants’ physical
encroachments upon it, defendants’ misrepresentations to land-
use authorities, and the interference with EKO’s access to and
development of its property—are not contradicted by a
prescriptive easement theory. What would change is the legal
theory under which those facts are pleaded—not the facts
themselves. The proposed amendment does not contradict or
explain away the original easement allegations; it reframes the
legal basis for the same underlying claims.
Moreover, the complaint already alleges the improved road
is the only practical means of access to EKO’s property, and
defendants’ alleged encroachments and misrepresentations have
interfered with that access and with EKO’s development plans.
Upon EKO’s amendment to allege a prescriptive easement over
the road, those same factual allegations would support amended
nuisance, trespass, quiet title, declaratory relief, and related
claims premised on defendants’ alleged interference with EKO’s
prescriptive right, rather than the extinguished recorded
easements. The proposed amendment does not introduce an
entirely new factual scenario; it refines EKO’s legal theory to
conform to facts already alleged in the complaint that were
further developed in the Morales-Olivares declaration.
Finally, defendants argue Kasaba is not the record owner of
the MEK property and EKO therefore cannot establish a
prescriptive easement or actionable claim against him personally.
However, the complaint alleges Kasaba is MEK’s managing
member, the MEK property was purchased for his benefit, and he
and MEK acted in concert in engaging in the alleged wrongful
conduct, including placing encroachments over the easement
area, engaging in unpermitted grading, and submitting false and
13
deceptive representations to land-use authorities. Further, to the
extent Kasaba exercises control over the MEK property as the
company’s managing member and beneficial owner, he is
amenable to claims that are binding on the property and on those
who control it. Causes of action such as quiet title and
declaratory relief, which seek to establish rights in and against
the property itself, must bind Kasaba to the extent he controls
and directs MEK’s exercise of rights over the parcel. And causes
of action sounding in nuisance, trespass, slander of title,
intentional interference, and negligence are directed to Kasaba’s
own alleged conduct—the encroachments, misrepresentations,
and interference he is alleged to have personally directed or
carried out—rather than solely to his status as a property owner.
Whether the evidence ultimately supports those allegations is a
question for the trier of fact. At the pleading stage, the
complaint’s allegations—as amended to support a prescriptive
easement theory—are sufficient to keep Kasaba in the case.
The original complaint is capable of amendment, and the
record contains specific factual assertions that, if pleaded and
proven, would satisfy each element of a prescriptive easement
theory. Because EKO has shown there is a reasonable possibility
its pleadings can be cured by amendment, it was an abuse of
discretion to deny leave to amend. (See Blank, supra, 39 Cal.3d
at p. 318.)6
6 Because we conclude leave to amend should have been
granted, EKO’s appeal from the denial of its new trial motion is
moot.
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DISPOSITION
The judgment is reversed and the case is remanded with
directions to grant leave to amend. Plaintiff EKO Substance
Three LLC is entitled to costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
HANASONO, J.
We concur:
ADAMS, Acting P. J.
OCHOA, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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