Falossi Vs. Koenig Moves Into Second Week Of Testimony

The Falossi-Koenig civil trial testing basic land use issues in the rustic desert community of Yucca Valley moved into its second week on Monday, continuing until Thursday, at which point the proceedings were suspended because of the judge’s anticipated absence until August 3.
Testifying from the stand this week were plaintiff David Falossi, the sculptor of oversized stone, metal and glass art pieces whose industrial activities in the midst of a residential zone coupled with his claim to “unfettered access and use” of dirt roads on his neighbors’ properties led to the legal contretemps, neighbor Fritz Koenig, whose objections to the scale of Falossi’s operation and its intrusion onto his own property to carry it out lies at the basis of the dispute, and another neighbor, Nora Fraser, over whose property the dirt road Mr. Falossi likewise claims he is entitled to “unfettered” use runs.
In much of his time on the stand, Falossi described his use and function of the road, Hoot Owl Trail, which runs across land belonging to Koenig and Fraser. Falossi explained he and his family have used his neighbors’ land since moving to Yucca Valley in 1989 for regular residential purposes as well as in conjunction with his art studio operations. Last week, Falossi’s daughter, Marissa Corson a realtor operating in La Quinta, testified under cross examination by Koenig that her father uses a flatbed diesel truck loaded with large blocks of rock and stone. Falossi’s website indicates he additionally uses metal and glass used in constructing his oversized three-dimensional artwork which is most commonly used for outdoors decorative purposes. Loaded with his larger products, Falossi’s trucks weigh in excess of 20,000 pounds as they cross the land of Koenig and Fraser in a town which sets 10,000 pounds as the limit for commercial traffic on residential streets.
Also testifying about the use of the road was another resident of the area, Dennis Pask, who has stated he favors Falossi in his dispute with Koenig and has “walked the neighborhood” to gather signatures for petitions to the Yucca Valley Town Council in support Falossi’s artist studio operation.
Falossi’s case against Koenig and another of their neighbors, Nora Fraser, filed in January 2013, and Koenig’s case against Falossi, filed subsequently, were earlier consolidated by Judge John Pacheco into a single case and both are now assigned to Judge David Cohn.
Falossi and Koenig live on Hoot Owl Trail in a rustic area in Yucca Valley, on adjoining parcels. Hoot Owl Trail is a dirt road that winds through the area, which appears to be a typical expanse of desert throughout the Mojave, featuring chaparral, creosote, mesquite and scrub brush and yucca, juniper, and Joshua trees, as well as cacti. Besides the one large home complex on Falossi’s property and a home and separate cabin on Koenig’s parcels, there are four other residential properties along Hoot Owl Trail, all of which are two-and-a-half acres or more. Ingress and egress over Hoot Owl Trail is in dispute where it passes over Koenig’s and Fraser’s properties. They maintain that their neighbors can use it to access their properties, but only in accordance with an intensity of use consistent with residences. Koenig and Fraser have granted such passage as “a neighborly accommodation.” and not by absolute right.
Falossi works from his home studio located on Hoot Owl Trail. Falossi initiated legal action against Koenig in June 2005, seeking a civil restraining order, but withdrew it within a week. In January 2009, Falossi filed another lawsuit against Koenig, asserting that Koenig had harassed him, his wife and his seven children. The outcome of that suit included an order from Judge J. David Mazurek enjoining Koenig from blocking Falossi from coming across Koenig’s property. Mazurek’s order expired in May of 2012. In January 2013, Falossi filed one of the suits Cohn is now hearing, this time against Koenig and Nora Fraser, further seeking to obtain the permanent right to transit over the portions of Hoot Owl Trail which stretch across Koenig’s and Fraser’s properties. In particular, Falossi wants to prevent both Koenig and Fraser from keeping his forklift or loaded or unloaded ten-ton transport truck from traversing their land.
Upon investigation, Koenig filed a separate lawsuit against Falossi for unlawful business practices related to Falossi’s home business of large sculpture production. Koenig maintains that what he characterizes as the industrial nature of Falossi’s fabricating operation that is central to his sculpturing and artwork goes well beyond the scope and intensity of activity that is normally and legally permitted in home-based businesses, both in Yucca Valley and elsewhere. Additionally, Koenig alleges Falossi operated without require permits from 1989 to 2005, often fails to renew his permit, and recently operated without a permit for over 3 years.
Koenig has asserted that the activity ongoing on Falossi’s property, which involves welding, stone grinding and glass grinding, is incompatible with a rural residential neighborhood and out of compliance with the town’s codes that were in effect since shortly after the town’s incorporation. Moreover, Koenig has objected to Falossi utilizing the dirt road across his property to support that operation, saying Falossi’s use of a forklift and a large truck to transport to and from his home studio both the raw material Falossi uses in his fabrication process as well as the finished artwork, which in some cases weighs in excess of ten thousand pounds, goes well beyond the spirit of neighborly accommodation of allowing the Falossi family to simply drive or walk to and from their home.
Last week, Falossi testified that trash trucks transit the road regularly and that he had also seen hay trucks, dump trucks and delivery trucks on Hoot Owl Trail. This week he gave further testimony relating to the road, his use of it, efforts to maintain it and his earlier cooperation with Koenig in seeking to limit the volume and intensity of traffic and passage over it.
Falossi, who has lived in the residence on his property since 1989, acknowledged that shortly after Koenig moved to one of the parcels that adjoin his on Hoot Owl Trail in 2004, he fashioned two identical wooden “private driveway” signs, one of which he installed as a gift to Koenig after he inquired about how to respond to uninvited parties on Koenig’s land. Those signs, Falossi testified, were intended to “discourage people from using Hoot Owl Trail.” Falossi stated that before Koenig and Fraser purchased their property, he placed a large stone monument at the sole entrance to the neighborhood which announces, “Boulder Ridge – A Private Community.” He then testified that the intention of this sign was to “improve the neighborhood.”
Falossi testified that he had used a “drag bar” to maintain, i.e., even the surface of, Hoot Owl Trail and had worked with others living on the road to keep the road passable and had on occasion contributed money, as a member of an informal collection of residents along Hoot Owl Trail, to a fund out of which local heavy equipment operators were occasionally hired to scrape the road.
Falossi in his testimony said that Hoot Owl Trail has been “in the same placement,” i.e., consistently contoured and located, for years. In his testimony, Falossi also noted that Koenig had positioned rocks along one side of the road to prevent it being widened further. He registered his objection to that, but said he had lodged no official objection at the time, but had reported to then-Yucca Valley Town Manager Mark Nuami that Koenig had put them there. Falossi said the placement of the rocks had resulted in “near misses” involving vehicles on the road, including one a tenant on one of his properties had with another motorist. When Koenig asked about the speed of those driving on Hoot Owl Trail and what the speed limit there is, Falossi said a ten mile an hour speed limit applied to his family and himself, suggesting without directly stating that while he drove at safe speeds others using the road do not.
Falossi testified conditions on the road have change since 2013 in that there are more bumps on the road and the drought has impaired the ability to maintain the road because it does not get wet enough to be packed down.
Dennis Pask, whose house is located roughly 1,300 feet from Hoot Owl Trail, said that traditionally the residents along Hoot Owl Trail had banded together as a loosely-knit collective to maintain the road, using shovels and wheelbarrows. He further explained that around 2004 or 2005 they had informally created a “road committee” and had “passed the hat” to hire someone to grade the road. Pask, who said he was better acquainted with and friendlier toward Falossi than Koenig, said that by November 2007, Hoot Owl Trial was in a state of disrepair, was deteriorated and unsafe. He said he twice graded the road, which resulted in Koenig suing him over a January 2008 alteration of the road across Koenig’s property. At that point in his testimony, Pask claimed there was an “easement,” i.e., right of others to pass unhindered over Koenig’s property in the federal land patent pertaining to Koenig’s property. Koenig objected to the use of the term easement, citing that no such language is contained in the patent and Pask’s use of the term in that context required a legal definition that Pask had not correctly made. Cohn sustained the objection.
The concept of easement and whether or not one exists on Koenig’s and Fraser’s properties is crucial to the case. The law of easements is complex conflicting and confounding. A land easement is a right held by a party to make use of another’s land for a limited purpose, such as a right of passage across a neighbor’s property. An easement may be established on a property owner’s property by his or her permission, or, against his or her wishes after certain conditions have been met.
Creation of an easement by prescription (without permission) requires at least that the beneficiary party openly use the property of another party continuously, for a statutorily prescribed number of years in a manner adverse to title held by the owner without the owner raising a formal objection and by claim of right. Koenig maintains he has raised objections to Falossi’s manner of use of his property going beyond the spirit and expressed intent of the “neighborly accommodation” with both the town of Yucca Valley and courts well within the statutorily described time limits since shortly after he purchased the property in 2004.
Koenig’s argument, essentially, is that no precriptive easement has been established and that his neighborly accommodations extends only so far as permitting transit across his property that is compatible with his neighborhood existing as a residential zone and not an industrial zone. Falossi’s use of his own residentially zoned property that is out of keeping with the residential zoning of the neighborhood is not something, Koenig maintains, he is obliged to accept, condone and facilitate. He therefore wants to draw the line on allowing Falossi to use the large vehicles and forklifts or any other means of conveyance to carry materials utlizied in the industrial scale operations.
Of note is that, seemingly in response to Koenig’s challenge of Falossi’s operation, the town has thrice acted to liberalized its codes, once in pertaining to the size and weight of vehicles that can make deliveries to or pick up items from residential properties located in residential zones, once with respect to the standards contained in the licensing granted to home-based businesses and, more recently, a proposed blanket exemption, with a final vote scheduled August 3, 2015, for “art studios” from the standards applied to home-based businesses. Despite those liberalizations, Koenig claims Falossi is still yet out of compliance with several elements of the town of Yucca Valley’s land use policy and zoning codes.
In this way, among the issues to be decided by Cohn are whether Koenig in fact has complete discretion over the degree of neighborly accommodation he extends to his neighbors, including Falossi; whether the neighborly accommodation Koenig has agreed to has ripened into an easement; what limitations apply to that easement if it in fact exists; whether Falossi has overburdened that easement if it indeed it exists; whether Falossi’s overburdening of the easement, if it does exist, should result in either the reduction of the easement or its extinguising altogether or whether Koenig can be and should be compelled to accommodate Falossi’s business operation and its impacts on Koenig’s property and the neighborhood in general.
When Koenig made his objection to Pask’s citation of the federal patent relating to the land along Hoot Owl Trail, Cohn signaled the potential direction of his rulings, saying that he was uncertain how the federal patents are relevant to the case.
Pask testified that Koenig was not present when some of what he called improvements to Hoot Owl Trail were carried out. Pask acknowledged that Koenig’s lawsuit against him was dismissed after he desisted in altering the portion of Hoot Owl Trail crossing Koenig’s property. Pask also testified that Koenig;s placement of rocks and boulders along the periphery of one section of Hoot Owl Trail changed it from a two lane road to a single lane road.
There did emerge one point of contradiction between Falossi’s testimony and that of Pask. Falossi had testified that Hoot Own Trail had never washed out or proven impassible, but that a road that led off Hoot Owl Trail, Tish Lane, had been impassible from 1989 until 2005. Pask testified that he had always been able to transit Tish Lane. The passibility of Tish Lane is of importance in that it links Hoot Owl Trail with another street, Grand Avenue, which parallels Hoot Owl Trail. The combination of Grand Avenue Tish Trail offer a variant route to the Falossi property that would obviate Falossi’s need to use Hoot Owl Trail.
Pask further testified that he had received a letter from Fraser informing him she no longer wanted him to maintain that portion of the road running over her property.
Offering testimony was Edward J. Bonadiman, a licensed surveyor based across the street from the Courthouse in downtown San Bernardino who had been hired by Falossi. Bonadamin offered into evidence a map of the properties around Hoot Owl Trail. That map was conditionally accepted by Cohn after Koenig’s objections to the scope of its meaning. Falossi’s legal team, led by Catherine Gayer, sought to elicit testimony from Bonadiman to the effect that the Hoot Owl Trail was properly laid out and placed and in fact could not have been diverted from where it was or have logically followed a different path. Koenig succeeded in challenging Bonadiman’s credentials, getting him to acknowledge he was not a licensed civil engineer or urban planner, although he had worked with such licensed professionals. Cohn agreed to hear Bondadiman’s testimony but accord it weight based upon his lack of expertise and licensure in the areas of engineering and road placement.
In accordance with Judge Cohn’s suggestions during open court, Koenig via his attorney reached a settlement with the Falossi legal team over the latter’s earlier submission of a motion calling for contempt of court sanctions which could ultimately expose Koenig to time in jail for what was alleged to be Koenig’s defiance of a protective order issued by Cohn restricting the distribution of discovery material from the case. Koenig was alleged to have provided that material to the Yucca Valley Town Council prior to its deliberations relating to a vote to liberalize those sections of the town code relating to licensing home-based businesses and art studios. Cohn’s protective order did contain an exception for distribution to governmental and regulatory agencies. Cohn gave indication he would not hold Koenig in contempt. Koenig’s attorney stated that Koenig would release the Town of Yucca Valley from liability should they destroy certain documents in their possession.
Falossi finished presenting his case. Fraser’s attorney made, and Koenig joined several written motions for judgment to dismiss all the parts of the case with a claim that Falossi had not proved his case. After lengthy reading, Judge Cohn denied the motion, offering explanations of his reasoning. Koenig made an oral motion based upon Hornbook law of interpretation of language seeking to have Cohn render a judgment that no express easement arose out of the federal land patent pertaining to the properties along Hoot Owl Trail and Koenig’s property specifically, in that the word easement is not used in the patent. The patent does state that a portion of the land “is reserved” for canals and ditches by the federal government, however in another the paragraph most pertinent to the dispute the patent uses the different language that the land is “subject to” a right of way. Koenig maintains the term “subject to” is vague. Koenig also cited the case of Murphy vs Burch in asserting that a federal patent does not establish an implied easement. Cohn has yet to render a decision about Koenig’s motion but instead called all defendants to present their defense.
Nora Fraser took the stand and started with a quivering voice to detail her experience of the conflict and her dread and fear of a public easement across her property, saying she was “terrified” by the thought that she would be subjected to anyone and everyone coming onto her property and would not be able to control people from entering onto her boulder field.
Fraser, the producer of Richard Simmons television broadcasts, owns a parcel along Hoot Owl Trail upon which is located a pristine rock formation at the top of a ridge. “People think my property is a public park,” she said. She believed “my private property would be opened to the public” if Falossi were to successfully prosecute his lawsuit and that passers-by on the road would take the opportunity to stop and hike or climb into or onto the rock formations.
Fraser said she had done everything she could to “passively” deal with people in the neighborhood she considered to be “aggressors.” She said she considered Falossi to be an aggressor but did not want to upset him to the point that he would harm her any more.
Towards the end of the day, Fritz Koenig began to testify in his defense. The trial resumes August 3, 2015.

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