Tariwala v. Mack CA2/6 ( 2022 )

Filed 9/27/22 Tariwala v. Mack CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
SAIFUDDIN TARIWALA et al., 2d Civ. No. B311232
(Super. Ct. No. 56-2017-
Respondents and 00501406-CU-OR-VTA)
Respondents. (Ventura County)
v.
KEITH MARTIN MACK,
Defendant and Appellant.
Appellant Keith Martin Mack (Mack) once owned two
adjoining properties in Thousand Oaks. He lost title to one of the
properties when he defaulted on a secured loan in 2011. Mack
has spent the last decade frustrating the attempts of new owners
to renovate or occupy the house on his former property.
Saifuddin Tariwala and two other individuals (respondents)
bought the house from the foreclosing lender in 2017.1 Mack
Tariwala’s co-respondents include Shabbir Saifee and a
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party identified by the mononym “Husaina.”
immediately blocked physical access to the house by locking a
gate that spanned their recorded driveway easement.
Respondents sued and obtained a preliminary injunction
prohibiting Mack from obstructing the easement pending trial.
The court twice found Mack in contempt after he blocked entry
with garbage, old appliances, and a shifting fleet of decaying cars
and recreational vehicles. After trial, the court declared the
easement valid and permanently enjoined Mack from obstructing
respondents from accessing their property.
Mack contends the doctrine of merger extinguished the
easement as a matter of law. The trial court abused its
discretion, he adds, by denying his mid-trial motion to amend his
answer to raise adverse possession as a defense. We affirm.
FACTS AND PROCEDURAL BACKGROUND
Mack owns a vacant parcel at 2957 Los Robles Road in
Thousand Oaks (Mack property). Respondents own a small
house on an adjoining lot at 2949 Los Robles Road (Tariwala
property). A recorded easement over the Mack property provides
the Tariwala property with its only access to the road (the
easement).
Mack and his family owned both properties for many years.
Intra-family transfers and purchases resulted in Mack acquiring
sole title in 2000. He lost title to the Tariwala property in 2011,
however, after defaulting on a loan secured by a deed of trust.
The foreclosing lender initially allowed Mack to remain on the
Tariwala property so he could remove garbage, inoperable
vehicles, and other personal items he had accumulated over the
decades. Mack neither cleared the property nor vacated, forcing
the lender to file an unlawful detainer and evict him in 2015.2
CitiMortgage, Inc. v. Keith Mack (Super. Ct. Ventura
2
County, 2011, No. 56-2011-00405818-CL-UD-SIM).
2
Respondents bought the Tariwala property from the bank
in 2017.3 Mack did not welcome his new neighbors. He denied
an easement existed and refused them access over his property so
they could begin clearing their lot and renovating the now-
dilapidated house. Respondents filed a complaint to enforce the
driveway easement under Civil Code section 809.4 They also
sought preliminary and permanent injunctions. The trial court
granted respondents’ motion for a preliminary injunction
prohibiting Mack from obstructing the easement. The court
found Mack in contempt twice for blocking the easement by
parking vehicles on plaintiff’s easement, including an
immobilized RV. We affirmed the preliminary injunction in a
prior appeal. (Tariwala v. Mack (Jan. 24, 2019, B286146)
[nonpub. opn.] (Tariwala I).)
Respondents prevailed at a three-day court trial.5 The trial
court found the easement valid and enforceable, rejecting the
argument that Mack’s common ownership of the two lots between
2000 and 2011 had extinguished the easement through the
doctrine of merger of title (merger doctrine). It denied Mack’s
mid-trial motion to amend his answer to plead the affirmative
defense of adverse possession. The resulting judgment
permanently enjoined him from “obstructing, interfering with, or
3 Plaintiff bought the property from First Nationwide
Mortgage Corporation (FNMC). FNMC was the successor in
interest of Mack’s foreclosing lender, CitiMortgage, Inc.
4All further statutory references are to the Civil Code
unless otherwise specified.
5 This was the first phase of a bifurcated trial. The
statement of decision refers to a second phase at which the
parties would decide respondents’ claims for monetary relief.
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impeding” respondents’ use of the easement and ordered him to
remove existing encroachments. Mack appealed.
DISCUSSION
Merger Doctrine
Mack contends that any easement burdening his property
was extinguished when he obtained sole title to both properties in
2000. He contends the trial court erred when it declined to apply
the merger doctrine under these circumstances. Mack requests
de novo review, characterizing his appeal as based on undisputed
facts. We disagree. The court heard conflicting evidence on
Mack’s merger defense. (See Hamilton Court, LLC v. East
Olympic, L.P. (2013) 215 Cal.App.4th 501, 505 (Hamilton Court),
citing 4 Miller & Starr, Cal. Real Estate (3d ed. 2011) § 10:41, pp.
139-140, fns. omitted. [whether merger has occurred is a question
of fact requiring inquiry into the parties’ intent].) We apply the
substantial evidence standard to factual findings. (See Beyer v.
Tahoe Sands Resorts (2005) 129 Cal.App.4th 1458, 1470 (Beyer)
[“To the extent that resolution of the appeal turns on factual
findings made by the trial court, we review such findings under a
substantial evidence standard”].)
The merger doctrine is codified in section 811 which states,
in part, that “[a] servitude is extinguished: [¶] 1. By the vesting
of the right to the servitude and the right to the servient
tenement in the same person. . . .” Similarly, section 805 states
that “[a] servitude thereon cannot be held by the owner of the
servient tenement.” These statutes “avoid nonsensical easements
– where they are without doubt unnecessary because the owner
owns the estate.” (Beyer, supra, 129 Cal.App.4th at p. 1475.)
“But application of the merger doctrine,” we observed in Mack’s
prior appeal, “is not automatic.” (Tariwala I, supra, B286146, at
p. *6.) It requires “a unity of title, in that title and ownership of
[the dominant and servient tenements] must be coextensive and
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equal in validity, quality, right to possession, and all other
characteristics.” (Beyer, at p. 1473.) Merger will not extinguish
an easement if the result would be inequitable or would result “in
an injustice, injury, or prejudice to a third person.” (Hamilton
Court, supra, 215 Cal.App.4th at p. 505, citing 4 Miller & Starr,
Cal. Real Estate (3d ed. 2011) § 10:41, pp. 139-140, fns. omitted.)
At trial, Mack contended the easement was extinguished by
merger when he acquired sole title to both properties in April of
2000. Respondents disagreed. They produced evidence that he
had simultaneously executed a deed of trust that expressly
referred to the easement. Mack responded that he did not intend
to pledge the easement at the time; he simply signed the papers
placed in front of him. He denied knowing any other recorded
instruments contradicting his account.
The trial court reviewed decades of evidence relating to the
properties’ chains of title. It concluded Mack never held the two
properties in unity of title because he encumbered the dominant
tenancy (the Tariwala property) immediately after acquiring sole
ownership and again in 2001 and 2005. The court declined to
apply the doctrine because doing so would render the lender’s
security interest essentially worthless by eliminating the
Tariwala property’s only access to the road. (Hamilton Court,
supra, 215 Cal.App.4th at pp. 505-506.)
Mack contends the trial court applied Hamilton Court in a
way that “swallows” the merger doctrine whenever third party’s
interests come into play.6 The trial court’s analysis was more
6 Justice Mosk proposed such a “mortgage exception” to the
merger doctrine in his Hamilton Court concurrence. He noted,
“there is or should be a so-called mortgage—in this case, deed of
trust—exception to the merger doctrine.” He then continued: “To
extinguish the interest of the beneficiary of a deed of trust or
mortgage security by merger would ‘jeopardize, if it did not
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nuanced. It scrutinized the parties’ conduct as well as the chain
of title and physical characteristics of each property. Granting a
security interest in one property but not the other left open the
possibility that the “unified” estate could be disjoined if he
defaulted on the loan.
Even if Mack had established a unity of interest, we
conclude the equitable component of the court’s decision would
have placed its decision on firm footing. Mack did not dispute the
Tariwala property was legally and physically landlocked.
Documenting the easement in the pledged deed of trust ensured
his lender could foreclose on marketable collateral in the event of
default. Mack presented no evidence the lender would have
funded his loan in the absence of this crucial provision. The trial
court correctly considered the profound prejudice the lender’s
successors in interest, i.e., respondents, would have suffered if
the merger doctrine were applied and they were left with no
means to lawfully access their house. We agree with the trial
court’s rejection of Mack’s plea of ignorance and his
interpretation of sections 805 and 811. The statement of decision
is a forthright application of Hamilton Court.
Motion to Amend Answer to Proof
Mack moved to amend his answer to plead adverse
possession as an alternative ground to extinguish the easement.
wholly destroy, the stability of every [such] security.’ [Citation.]
In this case and most such cases, the holder of the security is not
a party to the transaction giving rise to the merger doctrine. It
would be inequitable under the circumstances here to extinguish
the security rights of such a beneficiary of the deed of trust when
that security holder has no control over the transaction upon
which extinguishment of the easement by the merger doctrine is
claimed.” (Hamilton Court, supra, 215 Cal.App.4th at p. 506-507
(conc. opn. of Mosk, J.).)
6
The trial court requested supplemental briefing on the point then
denied the motion as untimely. It found allowing the amendment
would prejudice respondents. The trial court acted well within
its discretion given the late timing of Mack’s motion and his
failing to justify the delay. (See Leader v. Health Industries of
America, Inc. (2001) 89 Cal.App.4th 603, 613, quoting Roemer v.
Retail Credit Co. (1975) 44 Cal.App.3d 926, 939-940 [“‘The law is
also clear that even if a good amendment is proposed in proper
form, unwarranted delay in presenting it may—of itself—be a
valid reason for denial’”].)
DISPOSITION
The judgment is affirmed. Respondents shall recover their
costs on appeal.
NOT TO BE PUBLISHED.
PERREN, J.*
We concur:
GILBERT, P. J. YEGAN, J.
* Retired Associate Justice of the Court of Appeal, Second
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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Vincent O’Neill, Judge
Superior Court County of Ventura
______________________________
Law Offices of Michael D. Kwasigroch, Michael D.
Kwasigroch, for Defendant and Appellant.
Law Office of Daniel Friedlander, Daniel A. Friedlander,
for Respondents and Respondents.
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