Rock v. Rollinghills Property Owners Assn. CA1/3 ( 2021 )

Filed 9/20/21 Rock v. Rollinghills Property Owners Assn. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
BARBARA ROCK et al.,
Plaintiffs, Cross-defendants
and Appellants, A160163
v. (Mendocino County
ROLLINGHILLS PROPERTY Super. Ct. No. SCUK-CVG-2017-
OWNERS ASSOCIATION et al., 68592)
Defendants, Cross-
complainants and Respondents.
In 2002, Barbara and James Rock bought roughly 150 acres of
timberland in Point Arena near the Mendocino County coast (Rock property),
intending to eventually build a retirement home. They had been informed
the property was landlocked, but they hoped to later negotiate an access
easement from neighboring landowners. As it turned out, they lost their
gamble. Fifteen years later, after repeated approaches to the county; the
Rollinghills Property Owners Association (RPOA), the property owners’
association for the adjacent Rollinghills subdivision; the subdivision’s
homeowners and other neighboring landowners proved fruitless, the Rocks
sued the RPOA, its individual homeowners, and the original subdivider who
owns a property abutting the subdivision to the south (collectively,
defendants).
1
The complaint alleged the Rocks had a right to use the subdivision’s
private roads to access their parcel pursuant to theories of express easement,
easement by estoppel, easement by necessity or implication, prescriptive
easement, and equitable easement. Defendants cross-complained to quiet
title and for a judicial declaration that the Rocks had no such right. After a
four-day bench trial the court found the Rocks failed to establish an easement
under any theory and entered judgment for defendants as to the entire
action. Its findings and judgment are supported by substantial evidence and
the relevant law, so we affirm.
BACKGROUND1
I. The Properties
We begin by describing the three relevant properties: the Rock
property, the Rollinghills subdivision, and the “Hay property” to its south,
across which the subdivision’s property owners have a private easement to
access the nearest public road.2
The Rock property is an undeveloped 146-acre parcel zoned for timber
production, which their predecessor in interest accessed by a logging road
across an adjacent parcel to the property’s southeast. To the Rock property’s
south, the Rollinghills subdivision comprises approximately 530 acres
subdivided into 25 roughly 20-acre lots. A segment of the subdivision’s
Our discussion of the relevant evidence is in conformance with the
1
standard of review for substantial evidence.
The Rocks improperly included annotated versions of the Rollinghills
2
subdivision map in their opening brief, modified to depict the parties’
respective “interpretation[s].” Appellate courts may not consider matters
outside of the record, so we have disregarded them. (In re Marriage of
Corona (2009) 172 Cal.App.4th 1205, 1220, fn. 4; Hodge v. Kirkpatrick
Development, Inc. (2005) 130 Cal.App.4th 540, 546, fn. 1; Cal. Rules of Court,
rule 8.204(d).)
2
northern boundary abuts the southern boundary of the Rock property, while
portions of its southern boundary abut land owned by William Hay (Hay
property), who developed the subdivision in the early 1970’s. Among these
three properties, only the Hay property has direct access to a public road.
II. Hay Creates the Rollinghills Subdivision
In 1974 Hay’s partnership, H Bar H, subdivided the land now known as
the Rollinghills subdivision. Hathaway Crossing, the subdivision’s main
road, runs roughly three miles across its center before it dead-ends at an
interior cul-de-sac. On the western side of the subdivision it intersects Pine
Reef Road, which exits the subdivision to the south, crosses the Hay property
and finally intersects with Eureka Hill Road (also called Riverside Drive), a
public road. In the 1970’s Hay’s predecessor in interest granted H Bar H an
easement along Pine Reef Road for the exclusive use of the subdivision’s
property owners to access Eureka Hill Road.3 Pine Reef Road provides the
subdivision’s sole connection to public roadways.
The county approved and recorded the final subdivision map for the
Rollinghills development in 1974. The map identifies all of the roads within
the subdivision as private roads. The 60-foot wide private road easement
identified as “ ‘Rollinghills Way’ ” or “ ‘Road A’ ” is what is now known as
Hathaway Crossing. Roads “D” and “E” are shown as two relatively short
60-foot wide road easements adjoining and perpendicular to Hathaway
Crossing. Road D leads north and terminates at the subdivision’s boundary
with the Rock property. Road E leads east and also terminates at the
subdivision’s boundary. Neither road was ever built. The subdivision map
also references various easements affecting the subdivision, including public
utilities easements and the private access easement across the Hay property
3 Hay acquired the property, subject to the easement, in the 1980’s.
3
to Eureka Hill Road. It does not depict or refer to the Rock property or
describe any easement as benefitting it.
After the final subdivision map was recorded, H Bar H formed the
RPOA to manage and maintain the subdivision’s roads. All 25 parcels were
sold within two or three years.
III. Many Years Later, the Rocks Purchase Land in Point Arena
In 2001 the Rocks, residents of Orange County, were looking for a
retirement property in Northern California. They considered several
properties, but “fell in love with” the unimproved 146-acre Point Arena parcel
adjacent to the Rollinghills subdivision’s northern boundary. Their realtor,
Ray Eckert, informed them that the property was landlocked and that there
were access issues with the neighbors, but also that seller Eel River Sawmills
(Eel River) was willing to give them “ ‘a good deal.’ ” The Rocks offered Eel
River $30,000 more than the $152,000 listing price if it could provide an
agreement with the neighbors for access to the parcel, but, if any such
attempt was made, it was unsuccessful.
Before going through with the purchase, the Rocks received a
preliminary title report that expressly excluded from coverage “[t]he lack of
a legal right of access to and from a public street or highway.” The Rocks
acknowledged that they “READ, UNDERSTOOD & ACCEPTED” this report.
They also received and executed an addendum to their purchase-sale contract
that stated, “By signing this contract, Buyer is aware there is no deeded right
away [sic] to the property. Buyer is aware to obtain the right away [sic] is
the responsibility of the buyer [¶] . . . . [¶] Buyer understands subject
property is title/insurable with exclusion of right of way.” (Block
4
capitalization omitted.) Eckert nonetheless told the Rocks he believed the
property had access and that he would research the issue.4
On January 22, 2002, Eckert faxed the Rocks a copy of what is
apparently an exhibit to a title document for one of the subdivision’s lots,
with his handwritten notation that “This is the easement” and an arrow
pointing to the printed description of a “PARCEL TWO” as a “60’ wide private
road easement and public utility easement as delineated upon” the
subdivision map. Eckert had also noted on the document that “When
easement is created by Parcel Map & delineated—always goes back to Parcel
Map” and “The Law.” Barbara Rock testified that she and her husband
believed this meant “we could move forward with the purchase of the
property because we did have our legal access.” One week later, without
conducting any further research into the access question, they purchased the
property for $152,000.
In April 2002 the Rocks wrote to the RPOA board and president
requesting membership in the association and expressing their desire to
obtain an access easement across the subdivision’s roads. They wrote, “We
had been looking for a retirement property on the southern Mendocino-
northern Sonoma coast when we found out about the [Eel River] property.
Our realtor informed us that it was landlocked, but [Eel River] was willing to
give us a good deal if we could close quickly because the sawmill was going
out of business. We took a chance and bought the parcel with the hope that
we would be able to negotiate the easements we needed.” The Rocks
expressed their willingness to agree to various use restrictions “if [the RPOA]
4 Eckert was also Eel River’s agent. In early January 2002, Barbara
Rock asked him, “How do you feel about your role as dual agent in this
situation? It seems like it could get complicated.” Eckert died before the
trial, and the Rocks never filed a claim against the brokerage.
5
granted us our easement.” Barbara Rock conceded at trial that she
understood “landlocked” to mean “[w]ithout legal access” when she wrote this
letter. The RPOA considered and denied the Rocks’ request.
The Rocks made further unsuccessful efforts to negotiate with the
RPOA for an easement over the next two years, coupled with threats of
litigation if they were not allowed to access their property through the
subdivision. They also contacted other adjacent landowners, writing that
“[a]t this time we have no legal access so we are contacting all adjoining
landowners. Would you be willing to discuss access through your parcel?”
Those efforts apparently came to naught. In June 2006 Barbara Rock
informed a Regional Water Quality Control Board inspector that their
property lacked legal access through the Rollinghills development and that
“[a] legal easement was not established during the purchase of the property
and therefore the property is currently isolated.”
Nevertheless, in 2011 the Rocks applied to the county for a permit to
construct a road from Hathaway Crossing to their property at the location
marked “Road D” on the subdivision map. The RPOA protested, and the
Rocks withdrew the application after the county informed them they “likely
do not have a deeded easement for access” because their property was not
part of the subdivision. In 2013 the Rocks looked into buying a property that
would provide access to the Rock property, but that effort also came to
naught, as did further efforts in 2014 to negotiate for an easement and
further threats of litigation.
IV. The Lawsuit
In January 2017 the Rocks sued defendants. The complaint alleged
causes of action for “quiet title to express easement,” easement by
prescription, easement by “necessity/implication,” easement by estoppel,
6
equitable easement, and declaratory and injunctive relief. (Block
capitalization omitted.) Defendants answered and cross-complained for
a declaration that the Rocks had no easement or other right of access across
the subdivision or its roads and to quiet title against all such claims.
Following a four-day bench trial, the court rejected all of the Rocks’
causes of action. It explained: “Plaintiffs purchased their property knowing
it was landlocked in 2002. After failed attempts to negotiate access with the
adjoining property owners, and a brazen attempt to construct Road D on
their own with no legitimate access easement, they filed suit in 2017. The
evidence presented fails to establish the existence of a legitimate right to
access the property adjacent to the subdivision.”
The court rejected the Rocks’ primary claim that the subdivision map
created an express easement in their favor over Road D and the subdivision’s
other private roads, finding that neither the evidence nor the provisions of
the Mendocino County Code concerning subdivisions and lot access supported
it. The court observed that the Rocks’ interpretation of the County Code
would effect an unconstitutional taking by requiring developers to grant
access easements to private adjoining landowners without compensation.
As to the Rocks’ implied easement theory, the court concluded the
evidence showed neither that the parties intended to create an easement nor
that the Rock property became landlocked as a result of a conveyance that
removed the two properties from common ownership.5 Next, the court found
the Rocks were not entitled to an equitable easement because they were
aware the property lacked legal access when they bought it. Finally, it
5The Rocks’ appellate briefs do not address this cause of action, so we
deem it abandoned. (See Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943,
948 [appellate review is limited to causes of action briefed on appeal].)
7
concluded, their claim for a prescriptive easement was defeated by evidence
that right-to-passage signage was posted pursuant to Civil Code section 1008
during the entire period of their ownership; that they had visited the
property only a handful of times; and that there was no evidence their
predecessor in interest had used Road D for access.
Judgment was entered in favor of defendants on both the complaint
and cross-complaint. This timely appeal followed.
DISCUSSION
I. Express Easement
As at trial, the Rocks assert the recordation of the final subdivision
map in 1974 created an express easement over the subdivision’s private roads
in favor of their property. They base this conclusion on three arguments.
First, they contend the 1974 subdivision map establishes the alleged
easement as a matter of law without regard to extrinsic evidence. Second,
they assert their interpretation of the map is supported by extrinsic (and they
claim undisputed) evidence. Third, they contend provisions of the
Subdivision Map Act (Gov. Code, § 66410 et seq.) and Mendocino County
Code required H Bar H to provide access to their parcel. We reject these
arguments.
A. The Map
We start with the Rocks’ argument that the recorded subdivision map
independently establishes an express easement in their favor.6 The parties
Defendants moved at trial to exclude extrinsic evidence offered to
6
construe the subdivision map, arguing the Government Code precluded
evidence offered to contradict the final approved map and, alternatively, on
hearsay grounds. At the outset of the trial the court indicated it would
receive such evidence and determine its admissibility and weight. During
trial defendants objected to the admission of several documents as improper
8
agree that our review on this point is de novo. (Civ. Code, § 1066 [grants of
real property interests are generally subject to rules governing contract
construction]; City of Manhattan Beach v. Superior Court (1996) 13 Cal.4th
232, 238; WYDA Associates v. Merner (1996) 42 Cal.App.4th 1702, 1710.)
They are correct, up to a point. “The trial court’s resolution of an ambiguity
[in a written instrument] is . . . a question of law if no parol evidence is
admitted or if the parol evidence is not in conflict.” (WYDA Associates v.
Merner, at p. 1710.) However, to the extent the trial court admitted and
relied on extrinsic evidence to resolve any such ambiguity, we review its
findings for substantial evidence. (Ibid.)
At its core, the Rocks’ position is based on the fact that Road D, as it is
designated on the subdivision map, terminates at the border between their
property and the Rollinghills property.7 They contend: “[T]he map expresses
an intent to create an easement to the property to the north because it depicts
Road D as ending at the subdivision’s northern boundary.” Relying primarily
on Danielson v. Sykes (1910) 157 Cal. 686 (Danielson) and Bello v. ABA
Energy Corp. (2004) 121 Cal.App.4th 301 (Bello), they assert this
configuration independently created an access across the subdivision’s
private roads for the benefit of their property as a matter of law. We
disagree.
parol evidence and hearsay, but the court found they were helpful and
admitted them. On appeal they continue to suggest the extrinsic evidence
was improper or at least unnecessary, but they do not challenge the court’s
evidentiary rulings.
7 While the Rocks describe this theory as one of an express easement,
defendants address it as suggesting an implied easement based on the
subdivision map. The difference in approach is ultimately inconsequential,
as the trial court correctly rejected the Rocks’ position that the map
established an access easement for the benefit of their property.
9
The subdivision map does not indicate an intent to grant an easement
over Road D for the benefit of the Rock property. The map makes no mention
of such an easement even though the map expressly references other
easements affecting the subdivision, including public utility easements and
an easement across the Hay property for the subdivision’s homeowners.
Indeed, the map does not even depict or reference the Rock property. The
mere fact that the map depicts a private road ending at the boundary of the
Rock property, by itself, is not enough to establish an express easement for
the benefit of that property.
While the Rocks correctly observe that lots within a subdivision and
sold with reference to a recorded subdivision map incorporate any express
easements shown on the map (Christian v. Flora (2008) 164 Cal.App.4th 539,
551, 554–555; Gov. Code, § 66499.57),8 their attempt to extend this principle
to properties beyond the subdivision’s borders is not persuasive.
Danielson illustrates this point. Hattie Danielson bought two adjacent
lots within a subdivision. (Danielson, supra, 157 Cal. at pp. 689, 691.)
Richard Sykes acquired a lot across the street from Danielson’s property,
along with the ground included in an adjacent alley that opened onto the
street directly opposite Danielson’s parcel. There he erected a fence across
the alley’s entrance to the street, resulting in Danielson’s action against him.
(Ibid.)
8 Under Government Code section 66499.57, “Whenever the city council
or board of supervisors adopts a map prepared under this division as the
official map of the subdivision, town, city or county, it shall be lawful and
sufficient to describe the lots or blocks in any deeds, conveyances, contracts,
or obligations affecting any of the lots or blocks as designated on the official
map, a reference sufficient for the identification of the map being coupled
with the description.”
10
In this context, the Supreme Court applied the “thoroughly established
proposition” that “when one lays out a tract of land into lots and streets and
sells the lots by reference to a map which exhibits the lots and streets as they
lie with relation to each other, the purchasers of such lots have a private
easement in the streets opposite their respective lots, for ingress and egress
and for any use proper to a private way. . . .” (Danielson, supra, 157 Cal.
at p. 689, italics added.) “[S]uch map becomes a part of the deed. If the map
exhibits streets and alleys it necessarily implies or expresses a design that
such passageway shall be used in connection with the lots and for the
convenience of the owners in going from each lot to any and all the other lots
in the tract so laid off. . . .” (Id. at p. 690.) “A subsequent deed for one of the
lots, referring to the map for the description, carries such appurtenance as
incident to the lot.” (Ibid.)
Applying this principle to a subdivision’s minor streets as well as its
thoroughfares, the high court held that Danielson was entitled to access the
alley depicted on the subdivision map. (Danielson, supra, 157 Cal. at
pp. 690–692.) By the same principle, anyone who purchases a lot in the
Rollinghills subdivision “by reference to” the subdivision map has access to
the private roads and easements depicted on it. (Id. at p. 689.) Nothing in
Danielson, however, supports the Rocks’ proposition that this entitlement
applies also to those who, like them, never purchased property within the
subdivision.
Bello, supra, 121 Cal.App.4th 301, is equally inapposite. The Rocks
rely on Bello for the proposition that, “when private property abuts an
established street or road, a right-of-way is simply presumed without further
inquiry.” (Id. at p. 317.) Bello, however, addressed the installation of
11
a pipeline in a public right-of-way. (Id. at p. 305.) The court expressly
distinguished this situation from a private easement: “[u]nlike a private
easement, the use rights of a public right-of-way are vested equally in each
and every member of the public.” (Id. at p. 308; accord, Fitzgerald v. Smith
(1928) 94 Cal.App. 480, 484 [abutting landowner had right of access over
public highway].) Here, neither Road D nor the other private roads
designated on the subdivision map have ever been dedicated to the public.
Thus, the map, by itself, does not establish an easement over Road D for the
Rock property.
B. Extrinsic Evidence
At least implicitly relying on evidence beyond the map itself, the Rocks
argue that, since the residents of Rollinghills have neither any legal right to
access the Rock property nor any “past, present, or future need” to do so,
“[t]he only reasonable use [of Road D] that could have been contemplated”
when the subdivision map was filed was to provide their own property with
access over the subdivision to Eureka Hill Road.9 In their view, Road D could
simply serve no other purpose.
Assuming for the sake of argument that the properties’ respective
topographies and their orientation to each other and Road D suggest some
ambiguity on this point, our task is to “interpret the grant of easement in
accordance with the rules of construction codified by statute [citation]. In
such case, we may look to surrounding circumstances and the relationship of
9 At the same time, the Rocks assert it is “completely unknown”
whether it is even possible, given the topography of their land, to construct
a passable road onto it from the point where Road D abuts their southern
boundary. (Italics and underscoring omitted.) They do not explain how this
assertion can be reconciled with their claim that Road D was intended to
provide their land access to and beyond the subdivision’s roadways.
12
the parties and the properties involved [citations]” to give effect to the mutual
intent of the parties. (Christian v. Flora, supra, 164 Cal.App.4th at p. 550;
City of Manhattan Beach v. Superior Court, supra, 13 Cal.4th at p. 238.)
When extrinsic evidence is introduced to interpret the instrument, “the trial
court’s resolution of that conflict is a question of fact and must be upheld
if supported by substantial evidence.” (WYDA Associates v. Merner,
supra, 42 Cal.App.4th at p. 1710.)
The trial court considered the evidence and rejected the Rocks’ view
that Road D was necessarily created for the benefit of their property. Rather,
it found that “Road[s] D and E were identified as future access routes to the
north and east for the benefit of the subdivision.” That conclusion is
supported by substantial evidence. As the court observed, “Joseph J. Scherf
a licensed land surveyor who worked on the subdivision project confirmed
this in a 1973 letter report in which he wrote that, ‘Easements for future
extension of the road system have been established.’ ” Scherf’s report also
noted the subdivision would increase traffic on the county road by “at least
‘25 families,’ ” a figure that did not appear to include traffic from what is now
the Rock property. (Italics omitted.) Finally, the court noted, there was no
indication of any agreement between Hay and adjoining landowners for
access easements.
Other evidence confirms the court’s conclusion that Road D was not
intended as an easement for the benefit of the Rock property. Hay testified
that it was drawn in at the county’s request and was initially intended only
for fire access. At a 1973 meeting on the property with county and forestry
department officials, he expressed his concern that the proposed Road D
would “go nowhere,” and, consequently, his reluctance to spend money
building it. County personnel ended up agreeing that Road D need not be
13
constructed, but they wanted to leave the easement on the map to provide the
subdivision with access to a public road north of the Rock parcel “if the
adjacent north property was ever developed.” The county then required Hay
to construct turnouts along Hathaway Crossing for forestry vehicles as a
“trade-off” for dispensing with the requirement that he build Roads D and E.
In the end, the county inspected the subdivision, determined that all required
road improvements had been completed, and approved the final map.
The Rocks emphasize the testimony of former Mendocino County
Department of Transportation Director Eugene Calvert that Road D was an
express easement for the benefit of the Rock property. But the court
explicitly rejected Calvert’s view of the matter. As stated in its statement of
decision, “the court gave little weight to [Calvert’s] testimony. He did not
testify as an expert, nor was he involved in the parcel subdivision which
occurred in 1974. There was insufficient evidence to establish that Mr.
Calvert or any other county official conclusively determined that Road D was
an express easement for the benefit of property adjoining the subdivision.”
“In a substantial evidence challenge to a judgment, the appellate court will
‘consider all of the evidence in the light most favorable to the prevailing
party, giving it the benefit of every reasonable inference, and resolving
conflicts in support of the [findings]. [Citations.]’ [Citation.] We may not
reweigh the evidence and are bound by the trial court’s credibility
determinations.” (Estate of Young (2008) 160 Cal.App.4th 62, 76.)
C. Mendocino County Code and Subdivision Map Act
Alternatively, the Rocks contend the trial court erred in interpreting
the subdivision map because the county’s subdivision laws required that Hay
provide access to their property. Title 17 of the Mendocino County Code
addresses the division of land. Section 17-53, subdivision (C) (section 17-
14
53(C)) provides that “[a]ll streets shall, insofar as practicable be in alignment
with existing adjacent streets by continuation of the centerlines thereof, or by
adjustments by curves, and shall be in general conformity with plans made
for the most advantageous development of the area in which the division of
land lies. Where a division of land adjoins acreage, provision shall be made
for adequate street access thereto.” (Italics added.) Relying on the italicized
language, the Rocks argue their property is “acreage” that adjoins the
Rollinghills subdivision (a “division of land”). Thus, section 17-53(C) required
Hay to grant them legal access through the subdivision to the nearest public
street.10
The court disagreed with the Rocks’ construction of section 17-53(C),
reasoning that their interpretation would lead to absurd results and finding
it unsupported by the evidence. The court further concluded that construing
section 17-53(C) to require the grant of an easement to a private adjoining
landowner “would violate the Constitution as an unlawful taking without just
compensation. The court recognizes that in the course of processing a
subdivision plan, the government may reasonably require certain dedications
that benefit the general welfare of the public. But taking property to benefit
a private person without establishing a public purpose is not permitted.
[Citation.] In this case, no public purpose was established. Plaintiffs
10 We found nothing in the record indicating that access to the Rock
property was not “adequate” when the Rollinghills subdivision was approved
in the early 1970’s. Indeed, the evidence suggests otherwise. Eel River’s
long-term predecessors in interest, Charles Halliday and his forbears, did not
access the property through the subdivision. Instead, they primarily accessed
the Rock property through a property to the west and north along Harris
Ranch Road, while Eel River used a logging road from Eureka Hill Road
across a Mr. Cunningham’s property east of the subdivision. As neither party
has addressed this issue on appeal or, apparently, in the trial court, we
merely flag it as an open question.
15
themselves argue that Road D was designated solely for their benefit and no
others.”
Although the parties spend much of their briefs parsing various
provisions of Title 17, we need not resolve these arguments. Assuming that
section 17-53(C) is susceptible to the Rocks’ ascribed meaning, the trial court
properly rejected their construction because it would raise a serious question
about the provision’s constitutionality under the Takings Clause. (People v.
Superior Court (Romero) (1996) 13 Cal.4th 497, 509 [“ ‘If a statute is
susceptible of two constructions, one of which will render it constitutional and
the other unconstitutional in whole or in part, or raise serious and doubtful
constitutional questions, the court will adopt the construction which, without
doing violence to the reasonable meaning of the language used, will render it
valid in its entirety, or free from doubt as to its constitutionality, even though
the other construction is equally reasonable’ ”].)
Under the Fifth Amendment of the United States Constitution, “ ‘one
person’s property may not be taken for the benefit of another private person
without a justifying public purpose, even though compensation be paid.’ ”
(Hawaii Housing Authority v. Midkiff (1984) 467 U.S. 229, 241.) Here, the
trial court expressly found the Rocks failed to establish a public purpose for
their claimed easement. Substantial evidence supports that finding. As the
court noted, the county’s inspection and approval of the subdivision despite
Roads D and E not having been constructed indicated it did not consider
either to be for the benefit of the adjoining property, much less the public.
Nor was there sufficient evidence to show that any county official so
determined. “Plaintiffs offered no testimony from any employees from the
Planning Department or County Counsel. There was no testimony offered
from any county official who was involved in the parcel subdivision in 1974.
16
There was evidence however, that the same Department of Transportation
questioned the access issue in 2012 when Plaintiffs attempted to obtain a
permit to build Road D. Specifically, the Department opined, ‘The parcels to
be served by the proposed driveway were not a part of the Parcel Subdivision
which created the 60-foot wide easement and there[fore] likely do not have
a deeded easement for access.’ In 2012 the Department recognized that the
60-foot wide easement (Road D) was for the benefit of the subdivision.”
(Italics omitted.)
Although in their reply brief the Rocks identify fire prevention, brush
clearance and “provid[ing] for an orderly street system” as public purposes,
these suggestions do not withstand review for substantial evidence. Indeed,
the evidence indicated that the county determined that Road D was not
needed for fire access. (See ante, at p. 14.) Moreover, the Rocks’ suggestions
are difficult to square with their positions in the opening brief that “[t]here is
no chance that the access provided to [them] through Road ‘D’ would be used
to serve any other residence” and “there is no mention anywhere in the
subdivision file that any easement within the subdivision was for fire
access.”11
In close but somewhat vague relation to their position on section 17-
53(C), the Rocks contend the trial court misinterpreted the Subdivision Map
Act to rule that, as a matter of law, easements shown on a subdivision map
“can benefit only the subdivided parcels, not adjoining properties outside of
the planned development.” This “erroneous legal construction,” they argue,
11 We also query whether, assuming Road D was intended for fire
prevention or suppression, it would provide them a private right of access for
residential use. “The extent of a servitude is determined by the terms of the
grant . . . .” (Civ. Code, §806; Friends of Hastain Trail v. Coldwater
Development LLC (2016) 1 Cal.App.5th 1013, 1030.)
17
“operated to bar any relief based on the recorded map.” They misrepresent
the ruling: the court expressly acknowledged that “in the course of
processing a subdivision plan, the government may reasonably require
certain dedications that benefit the general welfare of the public.” (Italics
added.) It also found, however, that the county did not require the subdivider
to dedicate Road D to the public welfare. City of Buena Park v. Boyar (1960)
186 Cal.App.2d 61, 66–67, which held a subdivider was reasonably required
to install drainage improvements that benefitted areas beyond the
subdivision, is thus inapposite.
Next, the Rocks argue the network of private roads shown on the
Rollinghills subdivision map “[b]y definition” must provide access across the
subdivision to their parcel, because Mendocino County Code section 17-54
prohibits the approval of private roads within subdivisions unless they “will
not be a substantial detriment to the adjoining properties . . . .” The Rocks
claim the Rollinghills subdivision imposed a “substantial detriment” on their
parcel by interposing 25 lots between it and Eureka Hill Road. (Boldface
omitted.) Therefore, as we understand the argument, the county must have
intended that Road D would “ensure[] that those new properties would not
create further access problems” for the Rock parcel.
This argument, too, is unpersuasive. There is no indication in the
record that the Rock parcel historically had either a legal right to traverse
the Rollinghills land or a pattern of doing so. It is therefore difficult to
fathom what “detriment” the approval and construction of the subdivision in
the 1970’s could have inflicted on it. We conclude, in sum, that the trial court
18
properly found the subdivision map did not create an express easement over
the Rollinghills subdivision for the benefit of the Rock property.12
II. Estoppel
Taking a different approach, the Rocks argue that defendants are
estopped from denying them an easement across the subdivision because Hay
“accepted the benefits of the subdivision, a requirement of which included
a [sic] providing street access to and from the acreage that is presently the
Rock Parcel.” (See County of Imperial v. McDougal (1977) 19 Cal.3d 505,
510–511 [acceptance of benefits afforded by permit may bar landowner from
challenging condition imposed as condition of its issuance].) Little need be
said here, as the argument does not withstand the evidence (not addressed by
the Rocks) that the county agreed that H Bar H was not required to build
Road D and that its purpose was to provide the subdivision with access to
Harris Ranch Road in the north if the Rock property were developed in the
future. As an appellate court, we may not reweigh that evidence. (Estate of
Beard (1999) 71 Cal.App.4th 753, 778–779.)
III. Prescriptive Easement
The Rocks contend they acquired a prescriptive easement to access
their property over the subdivision’s roads. This contention lacks merit.
“The party claiming [a prescriptive] easement must show use of the
property which has been open, notorious, continuous and adverse for an
uninterrupted period of five years.” (Warsaw v. Chicago Metallic Ceilings,
Inc. (1984) 35 Cal.3d 564, 570.) Moreover, under Civil Code section 1008
(section 1008) “[n]o use by any person or persons, no matter how long
We therefore need not address the Rocks’ additional claim that their
12
alleged easement extends past the subdivision’s border over the Hay property
to the intersection of Pine Reef Road and Eureka Hill Road.
19
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.’ ”
Although the Rocks attempt to cast this issue as one of law subject to
independent review, they argue that the evidence (1) was insufficient to prove
the RPOA posted signage in compliance with section 1008; and (2) compelled
a finding that they used the alleged easement in an open, notorious, adverse
and continuous manner. Our review is thus for substantial evidence. (Ante,
at p. 14 [standard for substantial evidence review].)
The trial court found the RPOA prevented the creation of a prescriptive
easement by posting section 1008-compliant signage from 2002 onward. That
finding is supported by the stipulated testimony of multiple Rollinghills
homeowners that a “section 1008 ‘right to pass by permission only’ sign has
been in place on the side of Pine Reef [R]oad leading into the entrance to the
subdivision since at least 2002. . . . [¶] It faces southerly, and one cannot
enter the subdivision without passing the sign.” In addition, multiple
witnesses testified that Pine Reef Road is the sole entrance to the
subdivision, and a photograph and video of the posted sign were admitted
into evidence. No more was required. While the Rocks complain that no sign
was posted at Road D, there is no evidence Road D has ever functioned as an
“entrance” to the Rollinghills property. (§ 1008.) Accordingly, section 1008
did not require that a sign be posted there.
IV. Equitable Easement
We turn finally to the trial court’s determination that the Rocks are not
entitled to an equitable easement.
20
“[I]n a proper case, the courts may exercise their equity powers to
affirmatively fashion an interest in the owner’s land which will protect [an]
encroacher’s use.’ [Citation.] That interest is commonly referred to as an
equitable easement. [Citations.]
“For a trial court to exercise its discretion to . . . grant an equitable
easement, ‘three factors must be present. First, the defendant must be
innocent. That is, his or her encroachment must not be willful or negligent.
The court should consider the parties’ conduct to determine who is
responsible for the dispute. Second, unless the rights of the public would be
harmed, the court should grant the injunction if the plaintiff “will suffer
irreparable injury . . . regardless of the injury to defendant.” Third, the
hardship to the defendant from granting the injunction “must be greatly
disproportionate to the hardship caused plaintiff by the continuance of the
encroachment and this fact must clearly appear in the evidence and must be
proved by the defendant . . . .” ’ [Citation.] ‘Unless all three prerequisites are
established, a court lacks the discretion to grant an equitable easement.’ ”
(Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982,
1003–1004.)
The overarching principle is that the trespasser is the wrongdoer.
(Nellie Gail Ranch Owners Assn. v. McMullin, supra, 4 Cal.App.5th at
p. 1004.) “ ‘[T]herefore, “doubtful cases should be decided in favor of the
[landowner].” ’ [Citations.] Moreover, ‘courts approach the issuance of
equitable easements with “[a]n abundance of caution.” ’ [Citation.] When
courts compare the hardships or conveniences, the scales ‘begin tipped in
favor of the property owner due to the owner’s substantial interest in
exclusive use of her property arising solely from her ownership of her land.’ ”
(Ibid.) Our review is for abuse of discretion. (Ibid.)
21
Here, the trial court did not abuse its discretion in finding the Rocks
failed to prove the threshold element of innocent use. As the court explained,
“[t]he Plaintiffs did not purchase their property with a good faith belief that
an access easement existed. The purchase price was at a reduced rate due to
a lack of access. The purchase agreement and policy of title insurance clearly
states there is no access. Plaintiffs purchased the property in spite of
knowing they did not have access with the hope that they would eventually
gain access through negotiations with the adjacent property owners. This is
clear from the correspondence written by the Plaintiffs to the Rollinghills
property owners after they purchased the property. Also, in 2006, in a
meeting with representatives from the California Regional Water Quality
Control Board [(RWQCB)], Plaintiffs acknowledged that the property had no
legal easement for access through the Rollinghills Development. According to
RWQCB none was established at the time of the purchase and therefore the
property is isolated.”
Clinging to their testimony as to their state of mind in 2002 and
asserting justifiable reliance on the scribbled fax from their realtor, the Rocks
assert the trial court gave “undue weight” to the evidence they knew the
parcel was landlocked and “ignored” Eckert’s contrary advisement. Again, we
are not at liberty to reweigh the evidence. The evidence relied on by the court
and described in our Background section, ante, at pages 2–7, amply supports
its findings, which in turn compel our rejection of the Rocks’ equitable
easement theory. (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711–
712 [under an abuse of discretion standard, “[t]he trial court’s findings of fact
are reviewed for substantial evidence . . . and its application of the law to the
facts is reversible only if arbitrary and capricious”].)
22
The Rocks alternatively rely on Taliaferro v. Taliaferro (1956)
144 Cal.App.2d 109, 113, to argue the court should have granted them
access across the subdivision under its general equitable power to “ ‘recognize
new and expanding remedies to meet new situations.’ ” They did not raise
this theory in the trial court, so it is forfeited. (In re Stier (2007)
152 Cal.App.4th 63, 74; United States Golf Assn. v Arroyo Software Corp.
(1999) 69 Cal.App.4th 607, 623.) In any event, “there is no need to create
such new remedies where the remedies at law are adequate.” (Taliaferro v.
Taliaferro, at p. 113.) The Rocks provide no reason to conclude the judicial
power to grant an equitable easement “in a proper case” is less than
adequate. (Nellie Gail Ranch Owners Assn. v. McMullin, supra,
4 Cal.App.5th at p. 1003.) Their complaint, rather, is that the court
found this is not such a case. We find no reason to disturb that
determination.
V. Sanctions
The RPOA asks for sanctions against the Rocks for prosecuting a
frivolous appeal. We grant such requests only if an appeal was (1) filed and
prosecuted for an improper motive, i.e., to harass the respondent or delay the
effect of an adverse judgment; or (2) indisputably devoid of merit, i.e., “any
reasonable attorney would agree that the appeal is totally and completely
without merit.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) In
exercising our discretion we are mindful of our high court’s admonition that
the line between a frivolous appeal and one that is merely meritless is often
vague, and that we must proceed carefully to avoid chilling the right to
appeal. “Counsel and their clients have a right to present issues that are
arguably correct, even if it is extremely unlikely that they will win on appeal.
An appeal that is simply without merit is not by definition frivolous and
23
should not incur sanctions.” (Ibid., italics omitted.) Accordingly, sanctions
for frivolous appeals should not be used “in all but the clearest cases.” (Ibid.)
Here, despite the overall weakness of the Rocks’ arguments, we are not
convinced of their subjective bad faith. While their frequent disregard of the
applicable standards of review and incomplete or otherwise misleading
representations of the record sail perilously close to the line between zealous
advocacy and harassment, in the end we are not persuaded that they
meet Flaherty’s stringent standards. Sanctions are therefore denied.
DISPOSITION
The judgment is affirmed. The motion for sanctions is denied.
Respondents are entitled to their costs on appeal. (Cal. Rules of Court, rule
8.278(a).)
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_________________________
Chou, J.*
WE CONCUR:
_________________________
Fujisaki, Acting P. J.
_________________________
Petrou, J.
A160163
*Judge of the Superior Court of San Mateo County, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
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