Zissler v. Saville ( 2018 )

Filed 11/29/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
JAMES F. ZISSLER, as 2d Civil No. B286043
Trustee, etc., (Super. Ct. No. 16CV02421)
(Santa Barbara County)
Plaintiff, Cross-defendant,
and Respondent,
v.
PATRICK J. SAVILLE, as
Trustee, etc.,
Defendant, Cross-
complainant, and Appellant.
Beauty may be in the eye of the beholder but legal
ambiguity is not. As we shall explain, there is no objective legal
ambiguity in the easement here at issue.
Patrick J. Saville, as Trustee, appeals from a judgment
entered in favor of respondent James F. Zissler, as Trustee.
These Montecito neighbors have a dispute over an easement. The
trial court “interpreted” an ingress-egress easement burdening
respondent’s property for the benefit of appellant’s property. The
trial court ruled that the easement was ambiguous, decided the
case based upon extrinsic evidence of historic use, and added
language limiting the easement.
We reverse and remand the matter with directions to
prepare a new judgment consistent with the views expressed in
this opinion. Our analysis is guided by these general principles:
1. A broad grant of a right-of-way easement “‘will ordinarily be
construed as creating a general right of way capable of use . . . for
all reasonable purposes.” (Laux v. Freed (1960) 53 Cal. 2d 512,
525 (Laux); see post, p. 11.) 2. “[A] bona fide purchaser for value
who acquires his interest in real property without notice of
another's asserted rights in the property takes the property free
of such unknown rights.” (Melendrez v. D & I Investment, Inc.
(2005) 127 Cal. App. 4th 1238, 1251.)
Facts
The trial court’s 47-page statement of decision provides a
detailed factual summary. We draw upon it to explain the facts.
(See Axis Surplus Ins. Co. v. Reinoso (2012) 208 Cal. App. 4th 181,
184, fn. 1.)
The unpaved dirt road easement was created by a grant
recorded in 1994. As Appendix A to this opinion, we attach a
photo showing the location of the easement. The document
granting the easement is attached as Appendix B. George and
Annette Corbett conveyed to Peter and Kristi Lupoli an easement
“[p]roviding Grantee access, ingress and egress to vehicles and
pedestrians over Grantors’ real property from Green Meadows
Road to Grantees’ real property.” The easement runs across “the
most easterly portion of Grantors’ real property.” It is 10 feet
wide and 90.46 feet long.
Respondent purchased his property from the Corbetts (the
grantor) in 1999. Appellant purchased his property from the
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Lupolis (the grantee) in 2013. Appellant’s rectangular property,
which consists of about two acres, fronts onto and is accessible
from Picacho Lane. (See Appendix A.) Appellant’s property is
hereafter referred to as the “Picacho property.” The easement
provides access from Green Meadows Road over respondent’s one
acre parcel to the back unimproved portion of the Picacho
property. The main entry to the Picacho property is on Picacho
Lane.
Peter Lupoli, a lawyer, drafted the document granting the
easement. He told the Corbetts that the easement “‘would
always be used lightly’” and “sparingly and infrequently.”
When Peter Lupoli drafted the easement, he intended it “‘to
be prohibitive of construction access’” and to be “‘used
infrequently [by the Lupolis and their gardener] for landscape
purposes.’” “‘[I[t would be used in a non offensive way.’” Peter
Lupoli also intended that no “‘heavy vehicles’” would be allowed
on the easement. By “heavy,” he meant “‘anything much bigger
than a pickup truck.’” There was no showing that Peter Lupoli
communicated to the Corbetts his subjective intent as to the
scope of the easement. The Corbetts did not testify.
Kristi Lupoli testified that the Corbetts “kindly let us have
that easement because they knew [that without the easement] it
would be very difficult for us to maintain the back part of the
[Picacho] property.” “The easement definitely makes a difference
in being able to use the back part.”
Jose Lorenzo, appellant’s present gardener and the Lupoli’s
former gardener, testified that he drove a pickup truck and on
average used the easement three times per month for
landscaping purposes.
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Appellant is a licensed real estate broker. He testified: He
paid $4.7 million for the Picacho property. He intended to
develop it as an estate property, and the easement “was
necessary to carry out his plan.” Without the easement, “the
property value was reduced 40%.” “[T]here is no way to drive a
vehicle to the rear of the property other than [on] the Easement.”
Before appellant purchased the Picacho property, no one said
that the easement was subject to any restrictions in addition to
those expressly set forth in the document granting the easement.
Appellant originally intended to use the easement for a
construction project on the Picacho property that “involves the
complete demolition of the house, garage and swimming pool and
the construction of significantly larger buildings and amenities.
It includes very significant cut and fill.” Appellant “contend[ed],
based on his review of the Easement[,] that it can be used for all
access, ingress and egress - within the ten feet [width] - for any
purpose, whether it be construction or digging a well.” “[H]e
believed he had ‘unrestricted[’] all vehicle access and all
pedestrian access via use of the Easement pursuant to a written
agreement.”
Darrell Becker, respondent’s construction expert, opined
that the proposed construction project would take from 18 to 24
months to complete and would involve 14,000 trips to the Picacho
property.
Alan D. Wallace, an attorney and adjunct professor at
UCLA and Loyola law schools, testified as an expert witness for
appellant. He did not appear at the trial; a video of his
deposition was shown. Wallace spoke “about how the [real
estate] industry views things and how [respondent’s]
interpretation of the [easement] affects the industry.” Wallace
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“opine[d] that to rely on historic use [of the easement] or intent
[of the parties creating the easement] would wreak havoc in the
industry.” “It would be disastrous to have to ferret out what the
grantor or grantee intended because something is not delineated
in the document.” Wallace agree[d] that [appellant] as a buyer
and broker had a reasonable duty to investigate the Easement if
there was something unclear; but since this was a standard
easement, no investigation was required.” The easement “is clear
on its face; . . . when the words are as broad as this, there is no
reason to consider intent or historic use.” The trial court rejected
Wallace’s testimony and his legal opinion.
Respondent’s Complaint and Appellant’s
Cross-Complaint
Respondent filed a complaint against appellant for
declaratory and injunctive relief. It alleges: “[Respondent]
contends the grant of Easement is general in that the Easement
does not specify or limit the extent of use nor the extent of the
burden imposed upon [respondent’s] Property. Therefore,
[respondent] contends that the permissible use is determined in
the first instance by the intention of the parties. Once the
Easement has been used for a reasonable period of time, and it
has been [so used], [respondent] contends the extent of its use is
established by its past use.”
The complaint requests “a declaration that use of the
Easement is limited to its historic use, not exceeding twelve (12)
vehicle trips per year unrelated to construction activity.” It also
requests the issuance of a permanent injunction prohibiting
appellant and his successors in interest from “a. Using the
Easement for ingress and egress related to construction activity;
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and [¶] b. Using the Easement . . . in excess of twelve (12) vehicle
trips in any twelve-month period.”
Appellant filed a cross-complaint against respondent
alleging causes of action for declaratory and injunctive relief and
to quiet title to the easement. Appellant contended that he may
“pav[e] or otherwise resurfac[e] the Easement to make it
accessible year round.”
Trial Court’s Ruling in Its Statement of Decision
The trial court denied appellant’s “request to ‘exclude
extrinsic evidence or parol evidence’ related to the parties[’]
‘intent in drafting or signing the Easement.’” It rejected
appellant’s argument “that the Easement is not ambiguous and
there is no reason to look outside of the document.” The court
concluded that the easement is ambiguous because the grant of
the easement “is silent on the subject of frequency of use of the
easement, what vehicles are contemplated, or the purpose of its
use.” (See post, pp. 10-11.)
The court considered the servitude to be “a ‘General
Easement’ for pedestrian and vehicular access, ingress and
egress, failing to specify the nature and extent to which the
Easement may be used.” The court continued, “The rule is well-
settled that where a grant of an easement is general as to the
extent of the burden to be imposed on the servient tenement, an
exercise of the right, with the acquiescence and consent of both
parties, in a particular course or manner, fixes the right and
limits it to the particular course or manner in which it has been
enjoyed.” This rule was set forth in Winslow v. City of Vallejo
(1906) 148 Cal. 723, 725 (Winslow). The court stated, “The
Easement is restricted to its historic use and the purpose for
which the Easement was originally granted.”
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The court concluded that the testimony of Kristi Lupoli was
controlling. She said that the purpose “was to allow limited and
infrequent access to [the Lupolis’] back yard for landscape
purposes and occasional access for their caterers; . . . the
Easement was not . . . intended for heavy use, frequent use or
construction related activities.” (Italics omitted.) The court
determined that appellant’s “proposed use of the Easement [for
his construction project] is unreasonable” because it “would
overburden the Easement.”
The court rejected appellant’s contention that he may pave
the easement: “[T]here has never been a need to pave the
Easement for its intended use.” “[T]here is only one reason
[appellant] wants to pave the Easement; he wants to do so to
accommodate his intention to overburden the Easement.”
Judgment
The judgment provides that the easement may be used for
pedestrian and vehicle access, ingress, and egress “only as
reasonably necessary for landscape maintenance at the rear of
the [Picacho] property and other incidental use, at occasional and
reasonable times.” “[T]he easement may not be used for any
other purposes,” including “access, ingress and egress related to
construction activity on the [Picacho] property.” “The Easement
road surface shall remain unpaved.” The judgment grants a
permanent injunction prohibiting appellant and his successors in
interest “from using the Easement in a manner inconsistent”
with the judgment. The court “reserve[d] jurisdiction over this
case as there may well be future disputes over the Easement.”
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Appellant’s Concession that the Issue of
Access for His Construction Project Is Moot
In his opening brief appellant asserts, “The issue of access
for [his] construction project has . . . become moot and its
reasonableness under a proper interpretation of the Easement’s
unlimited scope does not have to be considered.” Appellant
explains: “[He] no longer intends to use the Easement to build
his house; by the time this appeal has been briefed, heard, and
decided, construction of the house will have already begun and
decisions regarding access routes and staging will have been
made based on not using the Easement.” “After construction is
completed - without use of the Easement - [he] still intends to use
the Easement as a service entrance, e.g. for maintenance
workers, gardeners, and cleaners, and for other purposes related
to maintaining the house as reasonably necessary. Those
purposes are imminently [sic] reasonable for an ingress-egress
easement in a premier street [in] Montecito.”
Since appellant concedes that the case has become moot to
the extent it concerns access for his construction project, we need
not review the portion of the judgment prohibiting him from
using the easement for construction activities. (See Peat,
Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal. App. 3d
272, 285 [“We presume the Supreme Court does not want us to
engage in the futile exercise of reviewing a moot order”].)
Otherwise, the case is not moot.
Interpretation of Easements and Standard of Review
“‘An easement is a restricted right to specific, limited,
definable use or activity upon another’s property, which right
must be less than the right of ownership.’ [Citation.]” (Scruby v.
Vintage Grapevine, Inc. (1995) 37 Cal. App. 4th 697, 702 (Scruby).)
8
“An easement agreement is subject to the rules of
interpretation that apply to contracts. [Citations.] . . . As with all
contracts, the paramount goal of interpreting a writing creating
an easement is to determine the intent of the parties. [Citation.]”
(Hill v. San Jose Family Housing Partners, LLC (2011) 198
Cal. App. 4th 764, 777.) But “‘[i]t is fundamental that the
language of a grant of an easement determines the scope of the
easement.’ [Citation.]” (Schmidt v. Bank of America, N.A. (2014)
223 Cal. App. 4th 1489, 1499.) “The extent of a servitude is
determined by the terms of the grant.” (Civ. Code, § 806.)
Winslow v. City of Vallejo
Based on Winslow, supra, 148 Cal. 723, the trial court
considered the servitude to be “a ‘General Easement’ for
pedestrian and vehicular access, ingress and egress, failing to
specify the nature and extent to which the Easement may be
used.” In Winslow a city was granted a right of way over the
grantor’s land for the purpose of installing and maintaining
water pipes. Our Supreme Court determined that “the
conveyance is general in its terms and affords no basis for
determining the number of pipes, their size, or their exact
location.” (Id. at p. 725.) The city initially laid a 10-inch pipe.
Nine years later, it sought to lay an additional 14-inch pipe. The
Supreme Court concluded that the city was “bound” by its
“election” to lay the 10-inch pipe and therefore could not lay an
additional pipe. (Id. at p. 727.) The court relied on the “well
settled” rule “that where a grant of an easement is general as to
the extent of the burden to be imposed on the servient tenement,
an exercise of the right, with the acquiescence and consent of
both parties, in a particular course or manner, fixes the right and
limits it to the particular course or manner in which it has been
9
enjoyed.” (Id. at p. 725.) On the other hand, “if the language of
the grant in question, viewed in the light of all the conditions
existing when it was executed, clearly gave to the [city] a right in
excess of the one actually used, such right would still exist,
notwithstanding the exercise for a time of a lesser privilege.
[Citation.]” (Id. at p. 726.) The court found “nothing . . . to
indicate that [the easement] was intended to give the [city] the
right to increase from time to time the number of pipes laid.” (Id.
at pp. 726-727.)
The trial court here determined that, as in Winslow, the
scope of the allegedly “general” easement is restricted to its
historic use. The trial court erred as a matter of law. The
easement is not a general easement within the meaning of
Winslow. Unlike the easement in Winslow, the instant easement
specifies its precise location, width, and length. The easement
also specifies its purpose: to provide “Grantee access, ingress and
egress to vehicles and pedestrians over Grantors’ real property
from Green Meadows Road to Grantees’ real property.” A
comment to the Restatement Third of Property (Restatement)
observes, “The purpose of an easement for ‘ingress and egress’
may [as here] be specifically defined as the entrance and exit of
people, or people and vehicles, or more generally defined as
access to the dominant estate.” (Rest.3d Property, Servitudes, §
4.10, com. d, italics added.) There is nothing objectively
ambiguous about the easement.
Ambiguity is defined as follows: “Doubtfulness; doubleness
of meaning . . . indistinctness, or uncertainty of meaning of an
expression used in a written instrument. Want of clearness or
definiteness . . . . [¶] Ambiguity exists if reasonable persons can
find different meanings in a . . . document.” (Black’s Law Dict.
10
(6th ed. 1990) p. 79, col. 2.) The instant easement could have
been drafted with greater specificity to narrow its scope. The
easement could have expressly stated that it was limited to
landscaping purposes. It does not. The lack of such specificity
does not make the easement objectively “ambiguous” as a matter
of law. As we discuss below, the language utilized is not
doubtful, susceptible to double or different meanings, indistinct,
uncertain, unclear, or indefinite.
An ambiguity is not apparent from the “failure” to specify
how frequently the road can be used. It would be unusual for a
residential ingress-egress easement to quantify the number of
trips allowed per day, week, or month. Similarly, it would be
unusual for such a residential easement to specify the type of
vehicle allowed on the road. As to the allegedly unspecified
purpose of the easement, the purpose is clear: to permit
pedestrians and vehicles to go from point A to point B by
traversing the servient estate.
The grant of the easement here is more specific than the
grant of an easement in Laux, supra, 53 Cal. 2d 512. There,
plaintiff deeded to defendant “‘[a] right of way over a road as
presently constructed along the East Branch of Sand
Creek . . . .’” (Id. at p. 516.) “No limitation as to either purpose
or use by defendant, of the right of way so conveyed is stated in
the deed.” (Ibid.) The California Supreme Court found “nothing
unclear, uncertain or ambiguous” in this language. (Id. at
p. 523.) The court noted: “[I]n Tiffany, Real Property, volume 3
(3d ed.), section 803, pages 322-323, it is said: ‘A grant in general
terms of an easement of way will ordinarily be construed as
creating a general right of way capable of use in connection with
11
the dominant tenement for all reasonable purposes. . . .’” (Id. at
p. 525.)
After Laux v. Freed was decided, the Court of Appeal
construed a grant “in broad terms” of an easement “for road
purposes” as creating “‘“a general right of way . . . for all
reasonable purposes.”’ [Citation.]” (Wall v. Rudolph (1961) 198
Cal. App. 2d 684, 692 (Wall).) “[S]uch a right . . . of use [is]
‘limited only by the requirement that it be reasonably necessary
and consistent with the purposes for which the easement was
granted.’ [Citations.]” (Ibid.; see City of Pasadena v. California-
Michigan Land & Water Co. (1941) 17 Cal. 2d 576, 582 [“the grant
of an unrestricted easement, not specifically defined as to the
burden imposed upon the servient land, entitles the easement
holder to a use limited only by the requirement that it be
reasonably necessary and consistent with the purposes for which
the easement was granted”].) The Court of Appeal continued,
“Th[e] reasonable contemplation [of the parties to an express
right-of-way easement] presumptively includes normal future
development within the scope of the basic purpose
[citations] . . . .” (Wall, supra, 198 Cal.App.2d at p. 692, italics
added.)
Since the parties to an express right-of-way easement
presumptively contemplate “normal future development,” such an
easement will generally not be restricted to its historic use. (See
Red Mountain, LLC. v. Fallbrook Public Utility Dist. (2006) 143
Cal. App. 4th 333, 350, brackets in original [“‘Normal future uses
[of an easement] are within the reasonable contemplation of the
parties and therefore permissible, but uncontemplated, abnormal
uses, which greatly increase the burden, are not,’” quoting from
12 Witkin, Summary of Cal. Law (10th ed. 2005) Real Property,
12
§ 407, p. 478]; 6 Miller & Starr, Cal. Real Estate (4th ed. 2018),
§ 15:59, p. 15-214 [“The most common type of easement is a
roadway for ingress and egress to another parcel of property. If a
right of way is granted in general terms, the grantee can use it
for all reasonable purposes consistent with the purposes of the
grant, and to the extent that the parties have anticipated the
future development of the dominant tenement”]; Rest.3d
Property, Servitudes, § 4.10, comment f [“the manner, frequency,
and intensity of use of the servient estate may change to . . .
accommodate normal development of the dominant estate”].)
In support of their position that the servitude is restricted
to its historic use, both the trial court and respondent rely upon
Rye v. Tahoe Truckee Sierra Disposal Co., Inc. (2013) 222
Cal. App. 4th 84 (Rye). There, an express easement provided “‘for
ingress, egress, parking, storage, utilities over a portion of Parcel
One . . . .’” (Id. at p. 88.) The portion subject to the easement was
approximately 100’ x 102’. (Id. at p. 96, Appendix A.) It
contained both a paved and unpaved area. The owner (Tahoe
Truckee) of the dominant estate had used only the paved area
and a small portion of the unpaved area. “The parties disagree[d]
whether Tahoe Truckee may expand its parking [of garbage
trucks] and storage [of garbage bins] within the area subject to
the easement beyond its historic uses.” (Id. at p. 86-87.) The
Court of Appeal upheld the trial court’s decision restricting the
parking and storage area to Tahoe Truckee’s historic use of the
easement. The Court of Appeal reasoned, “The only evidence of
the intention of the parties regarding the use of the easement is
past usage and that was confined to the paved area and a portion
of the unpaved area of the easement.” (Id. at p. 93.)
13
Rye is distinguishable. It does not discuss the ingress-
egress aspect of the easement. The appellate court noted, “The
scope of the easement for ingress and egress from the area
subject to the easement was not litigated.” (Rye, supra, 222
Cal.App.4th at p. 87, fn. 3.) In Rye, the dispute between the
parties concerned the portion of the area subject to the easement
that could be used for parking and storage. Unlike Rye, here
there is no dispute as to the usable portion of the easement. The
entire 10’ x 90’ strip of land subject to the easement may be used
for ingress and egress. “[T]he size [and location] of the right of
way was fixed and defined by precise description.” (Norris v.
State ex rel. Dept. of Public Works (1968) 261 Cal. App. 2d 41, 48.)
Rye is also distinguishable because Tahoe Truckee was not
a bona fide purchaser. As we explain in the next part of this
opinion, appellant is entitled to the protection afforded a bona
fide purchaser. The trial court did not rule on the bona fide
purchaser issue, but at oral argument in this court respondent
stipulated that appellant is a bona fide purchaser.
As a Bona Fide Purchaser, Appellant Was Entitled to
Rely on the Language of the Grant of the Easement
“The elements of a bona fide purchaser are payment of
value, in good faith and without actual or constructive notice of
another’s rights. Absence of notice is an essential requirement in
order that one may be regarded as a bona fide purchaser.
[Citation.]” (Oakdale Village Group v. Fong (1996) 43
Cal. App. 4th 539, 547.) “‘[A] bona fide purchaser for value who
acquires his interest in real property without notice of another’s
asserted rights in the property takes the property free of such
unknown rights. [Citations.]’ [Citations.]” (Melendrez v. D & I
Investment, Inc., supra, 127 Cal.App.4th at p. 1251.) “A person
14
generally has ‘notice’ of a particular fact if that person has
knowledge of circumstances which, upon reasonable inquiry,
would lead to that particular fact. [Citations.]” (First Fidelity
Thrift & Loan Assn. v. Alliance Bank (1998) 60 Cal. App. 4th 1433,
1443; see Civ. Code, § 19 [“Every person who has actual notice of
circumstances sufficient to put a prudent person upon inquiry as
to a particular fact has constructive notice of the fact itself in all
cases in which, by prosecuting such inquiry, he or she might have
learned that fact”].)
Appellant was a purchaser for value, and there is no
evidence that he was not acting in good faith when he bought the
Picacho property. The question is whether he had actual or
constructive notice of the Lupolis’ claim concerning the
easement’s restrictions. The language of the grant of the
easement did not provide such notice. The lack of notice is
supported by the following illustration from a comment to the
Restatement: “There is an easement appurtenant to Whiteacre
for ingress and egress over a private road crossing Blackacre. In
the absence of other facts or circumstances, Able, the owner of
Whiteacre, and Able’s family, tenants, and invitees, are entitled
to use the road 24 hours a day by any form of transportation that
does not inflict unreasonable damage or unreasonably interfere
with the enjoyment of Blackacre.” (Rest.3d Property, Servitudes,
§ 4.10, com. c, illus. 1; see Woods v. Shannon (2015) 378 Mont.
365 [344 P.3d 413, 417], quoting com. c, illus. 1 with approval; 12
Witkin, Summary of Cal. Law (11th ed. 2017) Real Property,
§ 421, p. 487 [“a grant of a right-of-way without limitations or
restrictions permits any reasonable use”].)
When he purchased the Picacho property, appellant did not
have “notice of circumstances sufficient to put a prudent person
15
upon inquiry” whether, as the trial court said in its judgment, the
easement could be used “only as reasonably necessary for
landscape maintenance at the rear of the [Picacho] property.”
(Civ. Code, § 19.) Before the purchase, Kristi Lupoli told him
that the easement “had been used for gardening.” She did not
say or suggest that this was the only permissible use. As we have
explained ante, because the easement is not a general easement
within the meaning of Winslow, the historic use of the easement
did not fix its scope. (See Mayer v. Smith (2015 NMCA) 350 P.3d
1191, 1198 [“Although historic use is a valid and, indeed,
necessary consideration in determining the scope of a prescriptive
easement, we have found . . . no case law that considers historic
use determinative in defining the scope of an express and
unambiguous appurtenant easement”].)
As a bona fide purchaser, appellant could reasonably rely
on the language of the grant of the easement. That language
gave him “a use limited only by the requirement that it be
reasonably necessary and consistent with the purpose[] for which
the easement was granted,” i.e., “access, ingress and egress to
vehicles and pedestrians over Grantors’ real property from Green
Meadows Road to Grantees’ real property.” (City of Pasadena v.
California-Michigan Land & Water Co., supra, 17 Cal.2d at p.
582.) “Because servitudes are interests in land, subject to the
Statute of Frauds and the recording acts, heavy emphasis is
placed on the written expressions of the parties’ intent. The fact
that servitudes are intended to bind successors to interests in the
land, as well as the contracting parties, and are generally
intended to last for an indefinite period of time, lends increased
importance to the writing because it is often the primary source
of information available to a prospective purchaser of the land.
16
The language should be interpreted to accord with the meaning
an ordinary purchaser would ascribe to it in the context of the
parcels of land involved. Searching for a particular meaning
adopted by the creating parties is generally inappropriate
because the creating parties intended to bind and benefit
successors for whom the written record will provide the primary
evidence of the servitude's meaning.” (Rest.3d Property,
Servitudes, § 4.1, com. d.)
The evidence does not show that the parties to the grant of
the easement - the Lupolis and the Corbetts - intended that the
easement would be used “only as reasonably necessary for
landscape maintenance at the rear of the [Picacho] property.”
The Lupolis testified that this was their subjective intent.
“Although the intent of the parties determines the meaning of
the contract, the relevant intent is the objective intent as
evidenced by the words used by the parties and not either
party's subjective intent. [Citation.]” (Kashmiri v. Regents of
University of California (2007) 156 Cal. App. 4th 809, 838.) “‘The
parties’ undisclosed intent or understanding is irrelevant to
contract interpretation.’ [Citation.]” (Cedars-Sinai Medical
Center v. Shewry (2006) 137 Cal. App. 4th 964, 980.) Even if the
Lupolis had expressed an objective intent to limit the use of the
easement to landscaping purposes, appellant would not be bound
by this limitation because he was a bona fide purchaser without
notice of the limitation.
Extrinsic Evidence
Appellant argues that, because the easement is clear and
unambiguous on its face, the trial court erroneously admitted
extrinsic evidence of the intent of the parties to the grant of the
easement. But facial ambiguity is not the test for the
17
admissibility of extrinsic evidence. “In ascertaining the intent of
the parties, the court may resort to extrinsic evidence not only to
resolve a facial ambiguity but to determine the existence of and
resolve a latent ambiguity. [Citations.] An ambiguity is latent if
the resort to extrinsic evidence reveals that what appears to be
perfectly clear language is in fact susceptible of more than one
reasonable interpretation. [Citations.]” (Los Angeles City
Employees Union v. City of El Monte (1986) 177 Cal. App. 3d 615,
622-623.) Thus, “‘[t]he test of admissibility of extrinsic evidence
to explain the meaning of a written instrument is not whether it
appears to the court to be plain and unambiguous on its face, but
whether the offered evidence is relevant to prove a meaning to
which the language of the instrument is reasonably susceptible.’
[Citation.]” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal. 4th
384, 391 (Dore).) Here, the language of the easement is not
reasonably susceptible to a meaning of “use for landscaping
purposes only.” (Ibid.) The trial court was not permitted to rely
on extrinsic evidence to “add to, detract from, or vary the terms of
an [unambiguous easement].” (Continental Baking Co. v. Katz
(1969) 68 Cal. 2d 512, 521.)
The situation here is different from the English case
involving two cotton-bearing ships named “Peerless.” (Raffles v.
Wichelhaus, 2 Hurl. & C. 906, 159 Eng. Rep. 375 (1864) [mutual
mistake].) There the contract, on its face, was patently
unambiguous. The contract said that Peerless would transport
cotton from Bombay to Liverpool. But there were two ships
named Peerless arriving at Liverpool from Bombay months apart
during a frenzied cotton market caused by the Civil War in the
United States. Thus, there was a latent ambiguity. Extrinsic
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evidence led the English court to conclude that there was no
contract at all because there had been no “meeting of the minds.”
The Judgment’s Prohibition Against Paving Easement
The judgment decrees, “The Easement road surface shall
remain unpaved.” Appellant claims that he should be allowed to
improve the easement “with an appropriate impermeable,
permanent surface” to “ensure that the pathway is usable at all
times, including in inclement weather.” “The owner of a
dominant estate may do that which is reasonably necessary to
enjoy the easement and, as an incident thereto, keep it in repair
and fit for use. [Citation.]” (Scruby, supra, 37 Cal.App.4th at pp.
706-707; see also Zimmerman v. Young (1946) 74 Cal. App. 2d 623,
628 [“The right to use the property for road purposes carried with
it a right to make necessary and reasonable improvements for the
purpose for which it was intended to be used”].)
Since appellant will not be using the easement for his
construction project, he has not shown that paving the easement
at this time is reasonably necessary to keep it in repair and fit for
its intended use. Therefore, the paving prohibition shall remain
unless and until there is a proven need for paving.
Disposition
The judgment is reversed and the matter is remanded to
the trial court with directions to prepare a new judgment
consistent with the views expressed in this opinion. The trial
court is not required to incorporate in the judgment the exact
language set forth below. It may vary the language so long as its
essence is preserved. The new judgment should include a
provision that the easement may be used to the extent that the
use is reasonably necessary for the convenient enjoyment of the
easement and is consistent with the purpose for which the
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easement was granted, i.e., access, ingress and egress to vehicles
and pedestrians over Grantors’ real property from Green
Meadows Road to Grantees’ real property, provided that the use
does not unreasonably interfere with the enjoyment of,
unreasonably damage, or materially increase the burden on the
servient estate.
Appellant shall recover his costs on appeal.
CERTIFIED FOR PUBLICATION.
YEGAN, Acting P. J.
We concur:
PERREN, J.
TANGEMAN, J.
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22
Thomas P. Anderle, Judge
Superior Court County of Santa Barbara
______________________________
Cappello & Noel and A. Barry Cappello, David L.
Cousineau, Jasper L. Ozbirn ; Pine Tillett Pine and Norman Pine
for Defendant, Cross-complainant and Appellant.
Rogers, Sheffield & Campbell and James H. Smith, G.
Michael Brelje for Plaintiff, Cross-defendant and Respondent.