Sonoma Land Trust v. Thompson CA1/5 ( 2020 )

Filed 12/16/20 Sonoma Land Trust v. Thompson CA1/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
SONOMA LAND TRUST,
Plaintiff and Respondent, A157721
v.
PETER THOMPSON, ET AL., (Sonoma County
Defendants and Appellants. Super. Ct. No. SCV-258010)
Peter and Toni Thompson owned approximately 34 acres of land near
Glen Ellen, California, burdened by two easements (the Easement Property).
One easement allowed Pacific Gas & Electric Company (PG&E) to maintain
power lines over a strip of the property and to trim, cut down and carry away
trees on that strip (PG&E Easement). A later conservation easement (Civ.
Code, § 815), granted in favor of respondent Sonoma Land Trust (Trust),
precluded the Thompsons from, among other things, removing or destroying
trees (Conservation Easement). The Thompsons nonetheless decided to
uproot and carry off three mature oak trees from the Easement Property to
an adjoining property where they lived, causing the death of those trees and
extensive damage to the land covered by the Conservation Easement. The
Trust sued the Thompsons and their entity, Henstooth Ranch LLC, who
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insisted that PG&E had authorized the removal of one of the oaks. The trial
court determined there could be no such authorization as a matter of law
and, after a trial, entered judgment in favor of the Trust.
The Thompsons and Henstooth Ranch LLC appeal, contending the
court erred by (1) excluding evidence that PG&E gave them permission to cut
one or more trees on the PG&E Easement; (2) allowing a PG&E contractor to
testify on behalf of the Trust and using that testimony to find that PG&E had
not granted permission to cut down trees; and (3) denying appellants a
continuance of the trial date. We will affirm.
I. FACTS AND PROCEDURAL HISTORY
A. The PG&E Easement
In 1960, Benjamin Swig, then-owner of the Easement Property,
granted an easement over a 75-foot-wide strip of the property to PG&E. The
PG&E Easement gives PG&E “the right to erect, construct, reconstruct,
replace, remove, maintain and use a line of towers with such wires and cables
as [PG&E] shall from time to time suspend therefrom for the transmission of
electric energy, and for communication purposes, and all necessary and
proper foundations, footings, crossarms and other appliances and fixtures for
use in connection with said towers, wires and cables, together with a right of
way, on, along and in all of the hereinafter described strip of those certain
lands which are situate in the [property].”
Under the PG&E Easement, PG&E further obtained “the right of
ingress to and egress from said strip over and across said lands by means of
roads and lanes thereon,” the right to mark the location of the strip, and the
right to install, maintain and use gates. In addition—as relevant to this
appeal—PG&E was granted “the right from time to time to trim and to cut
down and clear away any and all trees and brush now or hereafter on said
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strip and shall have the further right from time to time to trim and to cut
down and clear away any trees on either side of said strip which now or
hereafter in the opinion of [PG&E] may be a hazard to said towers, wires or
cables, by reason of the danger of falling thereon.” (Italics added.)
In 1981, a subsequent owner of the Easement Property granted PG&E
a modification of the PG&E Easement, increasing the width of the strip to
167.5 feet so PG&E could build a second line of towers.
The PG&E Easement and amendment bind, and inure to the benefit of,
the successors and assigns of the respective parties.
B. The Conservation Easement in Favor of the Trust
In 2009, Peter and Katherine Drake, as trustees of the Drake Family
Trust (a subsequent owner of the Easement Property), granted to the Sonoma
Land Trust an easement “exclusively for conservation purposes” over the
entirety of the 34.18 acre parcel (Conservation Easement), thus overlapping
the senior PG&E Easement. The stated purpose for the Conservation
Easement was to “preserve and protect forever” the conservation values of
the property, including its “natural habitat, scenic, and open space values.” 1
Specifically, the goal was to protect oak woodlands and a nearly pristine
community of native grasses, forbs, and fragile soils.
To that end, the Conservation Easement prohibits or significantly
restricts the property owner from a broad array of activity on the Easement
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A conservation easement is a designation by a private landowner of
their land, or a part of it, to be held in trust by a nonprofit organization, as a
permanent limitation on the uses of the land to protect “its natural, scenic,
agricultural, historical, forested, or open-space condition.” (Civ. Code, § 815.)
It constitutes an interest in real property and is binding on successor owners
in perpetuity. (Civ. Code, § 815.2, subds. (b), (c).) The Legislature has
“declare[d] it to be the public policy and in the public interest of this state to
encourage the voluntary conveyance of conservation easements to qualified
nonprofit organizations” such as the Trust. (Civ. Code, § 815.)
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Property, including building roads, causing soil degradation or erosion,
dumping waste, excavating or altering the contour of the property, and the
“pruning, cutting, removal, or destruction of any tree.” It allows only passive
uses, such as hiking, unless the landowner obtains prior written permission
from the Trust.
The Conservation Easement further provides that “Grantor shall
confine its use of the Property to activities and uses that are consistent with
the terms, conditions and Conservation Purpose of this Easement,” and
“[a]ny activity or use that is inconsistent with the terms, conditions and
Conservation Purpose of this Easement is prohibited.” The Trust has “the
right to enter the Easement Property as necessary to enforce the Easement.”
C. The Thompsons Acquire the Property
In 2013, the Drakes sold the Easement Property, as well as an adjacent
parcel that included a vineyard (Henstooth Property), to the appellants in a
single transaction.2 Appellants completed the purchase with knowledge of
the Conservation Easement, obtaining the Easement Property at a discount
due to its restrictions.
In 2014, appellants started construction of a new house, pool,
outbuildings, and landscaping on the Henstooth Property. Appellants’
landscape plan called for two large “specimen” oaks in the front and rear of
the home. Where would appellants obtain those oaks? They turned to the
land that was the subject of the Conservation Easement.
2
More precisely, the Drakes, as trustees of the Drake Family Trust,
conveyed the Easement Property to Peter S. Thompson and Toni H.
Thompson, Trustees of the Amended and Restated Thompson Family Living
Trust. Dragonleaf Limited, a California limited partnership managed by
Katherine Drake, granted the adjacent parcel to Henstooth Ranch, LLC, a
California limited liability company.
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D. The Thompsons Try to Move Protected Trees to Their New House
Despite the prohibitions set forth in the Conservation Easement,
appellants decided to uproot trees from the Easement Property and replant
them in the landscape of their new abode. They hired Hess Landscape
Construction, which bulldozed a haul road one-third of a mile down the
length of the Easement Property, so the trees could be dragged or carted from
one property to the other. In grading the road, they destroyed a fragile
community of native plants, changed the contours of the hill and introduced
erosion, and removed 12 more trees.
Appellants then uprooted, “rootballed,” and dragged an oak tree—later
named the Dead Tree—from the Conservation Easement to a location near
their new house. The Dead Tree did not survive relocation, so appellants had
it cut up and hauled away.
Appellants attempted to uproot and relocate a second mature oak tree
from the Conservation Easement (Boulder Tree), but its roots were wrapped
around a boulder, making it impossible to move. Appellants’ attempt to move
it killed the tree.
Appellants uprooted and moved a third mature oak tree from the
Conservation Easement to the driveway of their home, where they replanted
it (Driveway Tree). While all three of the oak trees had been located within
the bounds of the Conservation Easement, only the Driveway Tree had stood
in the strip covered by the PG&E Easement. The Driveway Tree ultimately
died from the trauma of relocation.
In addition, at Peter Thompson’s direction, another contractor dredged
sediments from a pond on the Henstooth Property, dumped them on the
Easement Property, and regraded portions of the Easement Property to hide
the extent of appellants’ activities.
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Appellants did not notify the Trust of their actions. To the contrary,
Peter Thompson directed his contractors to move quickly and block access by
a neighbor who had reported his deeds to the local open space authority,
which in turn informed the Trust. After the Trust contacted him, Thompson
texted his contractor: “If u c the neighbor, instruct all ur guys to boot his ass
off or anyone else u c up there!!! No more b[e]ing polite.”
E. The Trust Investigates
The Trust learned of activity on the Easement Property in October
2014 and asked to visit the site, as it was entitled to do under the
Conservation Easement. Appellants put off the Trust a few days, while
representing that they were working in collaboration with PG&E to mitigate
tree loss, and that they had agreed to relocate a tree in order to save it (a
representation the trial court would later deem to be “a lie”). This delay
bought appellants a few days to move the trees to evade discovery by the
Trust, with Peter Thompson texting the contractors “Is tree set? Someone
called land preserve people on me. When is big tree coming down?” and “If u
guys didn’t take so long we would’ve been under the radar!!!”
Trust staff finally gained partial access to the Easement Property on
October 28, 2014. Peter Thompson escorted the Trust’s Stewardship
Director, Robert Neale, and the Trust’s Conservation Easement Program
Manager, Crystal Simons, to part of the Easement Property. The Driveway
Tree was the only tree that appellants appeared (or admitted) to be moving at
that time. As shown by a contractor invoice for the day of the site visit,
however, appellants had already destroyed the Dead Tree and regraded to
hide their destruction of the Boulder Tree.
Even at that, Neale and Simons were “completely stunned” and
“shocked” at the magnitude of the work and destruction they witnessed on
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the Easement Property. The Driveway Tree sat “limbed with chains and
ropes around it . . . to secure it to the root ball” for loading “onto the steel
plate” with bulldozers, trucks, and heavy equipment parked around it.
Peter Thompson tried to explain the scene by representing to Neale and
Simons that PG&E was going to severely trim or top the Driveway Tree and
he was trying to “save it.” Neale told Thompson in response that if
appellants had asked the Trust’s permission, the Trust would not have
approved the activity, and would have instead worked with PG&E to resolve
the matter. It did not occur to Neale at the time that Thompson was lying.
Simons wanted to see other portions of the area, but Thompson refused.
Neale and Simons asked Peter Thompson to provide contact
information for “Greg,” the PG&E contractor who allegedly told him that
PG&E planned to cut the Driveway Tree. Despite repeated requests,
appellants did not provide the Trust with this information.
On October 29, 2014, Simons emailed appellants and asked to return to
the site to document the haul road and the areas she had not been able to see.
She also requested any correspondence and contact information regarding
PG&E’s intent to trim the Driveway Tree. Peter Thompson deflected her
attempts for weeks. After Simons announced her intention to visit the
property pursuant to the terms of the Conservation Easement in November
2014, Thompson threatened to report her action as a trespass and consult
with his attorney “about appropriate actions that are available to me against
you, personally, and against the Land Trust.” When Simons tried to visit,
appellants physically barred her from entering.
In November 2014, Neale met with Peter Thompson to defuse the
situation and learn about appellants’ activities. Neale asked Thompson if he
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had cut another tree down or tried to move another tree. Thompson looked
Neale in the face and said “no.”
By the time appellants let Simons enter the site again on November 25,
2014, they had regraded and hydroseeded the entire haul road to cover up the
full extent of their activities, without the Trust’s knowledge or permission.
This further harmed the Easement Property by failing to control erosion and
introducing nonnative grasses.
F. The Trust Issues a Notice of Violation
In December 2014, the Trust issued a Notice of Violation that identified
the known violations of the Conservation Easement and the steps to remedy
them. (The Trust did not learn of the Boulder Tree or Dead Tree until
discovery in the ensuing litigation.)
Appellants initially said they would work with the Trust to restore the
Easement Property, but ultimately refused to engage in good faith
restoration efforts. In July 2015, they hired a restoration contractor, Michael
Jensen, to recommend the steps for restoring the Easement Property. Jensen
eventually presented these recommendations, and Trust staff reviewed them.
On November 5, 2015, the Trust wrote defendants a letter conditionally
approving the steps described by Jensen, subject to additional requirements.
Peter Thompson responded, “You have to be kidding with this???” Appellants
refused to restore the property in conformity with the Trust’s conditional
approval.
G. The Trust Sues Appellants
The Trust filed suit against appellants in November 2015, alleging
their activities violated the Conservation Easement and Civil Code section
815.7, and seeking damages and injunctive relief.
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Throughout the litigation, appellants continued to obstruct the Trust’s
efforts to investigate their actions, misrepresented PG&E’s actions and Trust
staff’s statements, withheld “Greg’s” contact information, refused to produce
documents and answer interrogatories, refused to appear for their
depositions, and physically ejected Trust staff and experts from the Easement
Property during a properly noticed inspection.
1. Trial Setting
Trial was initially set to begin on June 2, 2017. Appellants filed 18
motions in limine, oppositions to the Trust’s nine motions in limine, and
replies in support of their motions. When the parties appeared for trial, no
courtrooms were available, and trial was reset for October 27, 2017.
During the intervening months, appellants’ attorneys obtained an order
allowing them to withdraw from their representation, and wildfires burned
significant portions of Sonoma County. The court continued the trial and
scheduled a conference for January 31, 2018.
Attorney Gary Gorski began representing appellants in early 2018. At
the trial setting conference on January 31, 2018, Gorski was unable to agree
to a trial date earlier than July 27, 2018—more than 13 months after the
original trial date—due to his existing trial and vacation plans. The Trust,
having proposed several earlier dates, agreed to the July 27 trial date but
informed appellants and the court that its lead trial attorney had travel plans
beginning August 27, 2018, and a delay in the start of trial would conflict
with those plans and disrupt the trial. The court set the trial for July 27,
2018.
2. Appellants’ Attorney Seeks a Continuance on the Eve of Trial
On July 24, 2018—three days before the July 27, 2018 trial call—
Gorski filed a motion requesting a continuance of the trial for five court days,
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stating that an order relating to his family had been issued on July 19, 2018
in a Contra Costa County juvenile dependency proceeding. He asserted:
“There has been a material change in family relations as a result of the order,
resulting in substantial interference with Counsel’s ability to provide
effective counsel to defendants.” He added: “Because of the confidential
nature of the Dependency Proceeding (e.g. Welfare and Institutions Code
section 827), Counsel for defendants cannot disclose the nature of the
proceeding, other than it personally affects Counsel, and Counsel is willing to
explain the nature of it in camera.” An accompanying declaration noted that
Gorski was a solo practitioner and there was “no other counsel available to
substitute in.” It also advised that appellants were agreeable to his
continued representation of them “only if the 5-court day continuance is
granted so that I can adequately prepare with my clients and be available at
trial.”
The Trust opposed the continuance, noting that, as explained when the
trial date was set, its lead counsel had a conflict from August 27 through
September 3. The Trust also argued it was unclear how much the requested
continuance was due to the family emergency, as opposed to Gorski’s
tardiness in preparing for trial.
At the July 27, 2018 trial call, the court acknowledged that Gorski set
forth the basis of his motion “as best he could, without going into confidential
privileged information.” The court explained its tentative decision to deny
the motion, finding no good cause in light of the lengthy procedural history of
the case, while noting that court would be in session only from 8:30 a.m. to
1:30 p.m., Tuesday through Friday.
The court then invited Gorski to respond. Gorski stated he could not be
effective because he “could not be here on certain days” due to “things going
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on,” his clients were willing to waive a jury, motions in limine could be
addressed as the trial proceeded, and he could be ready for trial by August 3
or August 6. The court reiterated that it was inclined to deny the
continuance, with the understanding that the trial would not likely start
until Tuesday or Wednesday of the following week (July 31 or August 1), but
asked Gorski if we wanted to be heard further. Gorski replied, “No, Your
Honor.” The court denied the motion. The matter proceeded to a bench trial.
3. Order in Limine Excluding Evidence of PG&E Authorization
Before the earlier trial setting, the Trust had moved in limine to
exclude evidence or argument that a representative of PG&E allowed Peter
Thompson to relocate any of his oak trees growing near or within the PG&E
easement. The Trust argued that PG&E could not, as a matter of law,
authorize others to act outside the scope of its own authority: PG&E's rights
under its utility easement were limited to actions necessary to maintain and
use its power lines, and PG&E could not relocate trees because that would
not serve PG&E's narrow interest. Appellants opposed the motion, insisting
that the PG&E Easement allowed PG&E to cut down and clear trees on its
easement without limitation.
At the in limine hearing on August 1, 2018, the court ruled that PG&E
would not have had the right under its utility easement to “remove a tree for
a landscaping purpose, to dig that tree up, and then to move it to an adjacent
property or to another location on a property for landscaping.” It further
ruled that PG&E did not "have any authority to transfer that utility
easement authority to . . . the Thompsons” to relocate the tree without the
Trust’s approval. On this basis, the court excluded "any evidence that there
was an agreement . . . between PG&E and the defendants that excused and
allowed for the relocation of the trees."
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4. Order During Trial Allowing Greg Wheeldon’s Testimony
After the trial began, appellants moved for an order excluding further
evidence of any role PG&E had in regard to matters relating to the
Conservation Easement, including discussions with the now-identified Greg
Wheeldon who had supposedly told Peter Thompson that PG&E authorized
him to relocate the Driveway Tree.
In response, the Trust’s attorney made an offer of proof that, contrary
to what appellants had been claiming for years, Wheeldon had not authorized
appellants to remove the Driveway Tree, and in fact he had told Thompson
that PG&E was probably never going to trim that tree because it was at least
150 years old, was 55 feet away from the power lines, and would grow only
two to three inches a year. Wheeldon’s testimony was thus relevant to Peter
Thompson’s credibility, and Thompson’s statements to the Trust about
PG&E’s alleged authorization related to appellants’ defenses that the Trust
failed to mitigate damages (by not telling appellants to stop their relocation
of the Driveway Tree immediately) and that the Trust incurred unreasonable
staff costs in investigating the matter.
The court ruled that it would allow Wheeldon’s testimony for the
limited purpose of the credibility of Peter Thompson. The court clarified that
Wheeldon’s testimony would not "have any bearing on the legal ability of
PG&E to somehow, again, transfer or convey [its] rights under this
Easement."
The Trust later called Wheeldon as a witness. He confirmed that he
did not tell Peter Thompson that PG&E was going to trim the Driveway Tree.
To the contrary, Wheeldon testified, “I told him my assessment of the tree,
based on the amount of clearance and the yearly growth rate of the tree, that
the tree would, in my opinion, probably not need to be trimmed, most likely,
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in the lifetime of the tree.” Wheeldon further testified that in September
2016 he had a telephone conversation in which Peter Thompson said he
needed Wheeldon’s help and wanted him to tell the Trust that Wheeldon had
granted him permission to move the tree; Wheeldon told Thompson he could
not do so, because he had not said that.
After Wheeldon testified, Peter Thompson admitted on the stand that
his representation to Neale about “events involving the relocation of a very
old oak tree that was marked for topping by PG&E” was “a false statement.”
In fact, Thompson confessed, he had not talked to Wheeldon about relocating
“a very old oak tree that was marked for topping by PG&E.”
5. The Trust’s Evidence of Damage and Appellants’ Scheme
Over the course of the 19-day trial, percipient and expert testimony,
photographs, maps, and contemporaneous correspondence and reports
recounted the facts summarized ante and demonstrated the severity of the
harm that appellants caused to the Easement Property. Cost estimates for
repairing the damage, including a five-year remediation plan, amounted to
more than $500,000. The trial also included extensive testimony about
appellants’ planning, execution, and cover-up of their violations of the
Conservation Easement.
6. The Trial Court’s Findings and Judgment
The court announced its decision in open court on October 10, 2018,
taking about two hours. A proposed statement of decision was submitted on
January 23, 2019, and a 56-page Final Statement of Decision was issued on
April 16, 2019.
The Final Statement of Decision found that the testimony and evidence
demonstrated "the truly extraordinary nature and extent of harm to the
Easement Property,” noting the vegetation and soils on the property had
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"evolved over thousands of years with minimal disturbance." Based on
“overwhelming” evidence, the court found that appellants violated the
Conservation Easement and that their defenses were meritless, and it held
all three appellants jointly and severally liable for the harm to the Easement
Property.
The court specifically found that “neither Mr. Wheeldon nor any other
representative of PG&E told Mr. Thompson that PG&E planned to trim or
remove the Driveway, Boulder, or Dead Tree. Nor did Mr. Wheeldon or any
other representative of PG&E give or purport to give Mr. Thompson
permission to remove or relocate any tree on the Easement Property." The
court noted that Wheeldon’s testimony on this point was “specific, consistent,
and credible” and his “demeanor at trial was both honest and direct.” “In
sharp contrast, Mr. Thompson admitted during trial that he had not always
provided an honest account of his interactions with Mr. Wheeldon and that
his verified response to Trust’s interrogatories . . . was false,” and his
“testimony regarding these communications was evasive and incomplete.”
The court made other credibility determinations, finding that Neale
and Simons “testified with specific, consistent, and credible detail regarding
their conversations and written communications with Mr. Thompson,” but
“Mr. Thompson’s testimony was evasive, incomplete, and at times plainly
false regarding these same communications.” The court observed that
Thompson’s “ability to recall details and his willingness to answer questions
during trial were starkly different depending on whether the answers were
favorable to his account.” The court added: “Peter Thompson also lied in the
October 28 email to Ms. Simons, in which he stated: ‘We agreed to relocate
this tree to save it from being topped and ruined aesthetically . . . We
understood too that our relocating the tree would likely spare it from dying.’
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. . . He lied again when he said that ‘he would put a call into the contractor to
see where they are at in the process and relay your message.’” “And
defendants continued to allege in Court filings up to the date of trial that
they had to move the Driveway Tree to save it.”
The court further explained that appellants’ defenses failed “for the
additional reason that defendants have little credibility and no documentary
or photographic support. The vast majority of the testimony on cross-
examination of Peter and Toni Thompson, Joseph Lunny, Loretta Murphy,
and Alexander Bannon was misleading, evasive, inconsistent with deposition
testimony, or outright false.” Although at trial Peter Thompson denied
asking Wheeldon to lie to the Trust and denied telling Simons and Neale in
October 2014 that he had to move the Driveway Tree to save it from PG&E,
the court found, “based on the weight of the evidence and the credibility of
the respective witnesses, that both denials were false.” The court continued
in this vein, providing specific examples with citations to the record.
The court awarded the Trust $575,899, including $392,670 for the cost
of restoring the property, $73,800 for the three large oak trees, and $92,286
for costs of the Trust staff’s time enforcing the Conservation Easement, as
well as $90,943 for expert witness costs. The court also issued a permanent
injunction requiring appellants to let the Trust access the property and take
steps to restore it.3 Judgment was entered on April 25, 2019.
H. Appellants’ Post-Trial Motions
In May 2019, represented by new counsel, appellants filed a motion for
a new trial (Code Civ. Proc., § 657) and a motion to set aside the judgment
3
The trial court later awarded the Trust $2,961,264.29 for its attorney
fees and expenses, which is the subject of another appeal pending in this
court (A159139).
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(Code Civ. Proc., § 663). The motion to set aside the judgment was based on
arguments not asserted in this appeal, so we do not address it.
Appellants’ new trial motion made numerous arguments, two of which
have some bearing here. Appellants asserted (1) the court erred in excluding
testimony relating to PG&E’s Easement and its alleged authorization of
appellants to remove trees; and (2) attorney Gorski was “surprise[d]” by the
dependency order of July 19, 2018, which forced him to take care of his
daughter and kept him from sufficiently preparing witnesses and gearing up
for trial, and the court should have granted a continuance.
Gorski submitted a declaration in support of the new trial motion. In
that declaration, he referenced another declaration he had filed on or about
April 4, 2019, several months after the trial testimony had ended. In his
April 2019 declaration, he revealed that the July 19, 2018 dependency order
had granted him full legal and physical custody of his estranged 12-year-old
daughter. As a result, he could not stay with the Thompsons in Santa Rosa
during the trial as planned, and he had to commute “5 to 9 hours per day”
between his residence in Folsom and the courthouse in Santa Rosa. Although
he scheduled family therapy and social worker meetings on non-trial days,
his daughter had medical appointments, IEP meetings, and other
“educational issues and logistics” that took him away from the case, leaving
him unable to meet with witnesses as contemplated and without time to
review notes and exhibits. “To be very clear,” Gorski averred, “the single
most significant factor impeding my ability to provide effective assistance of
counsel was the fact that I had to commute to court because I could not leave
my daughter home alone.” He again asserted that he could not go into great
detail due to the confidential nature of the dependency proceeding, but
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offered to explain in camera “if there is any question how this situation
materially altered” his representation.
In his declaration in support of the new trial motion, Gorski added that
he had not initially realized the impact the dependency order would have on
his availability to represent the Thompsons in the trial.
On June 28, 2019, the court heard argument on the motions and denied
them from the bench. The court found no error in law, surprise, newly
discovered evidence, or other ground on which to grant a new trial or set
aside the judgment. A written order denying the motions was entered on
August 12, 2019.
I. Appeal
On July 3, 2019, appellants filed a notice of appeal from the judgment.
Appellants’ opening brief contends they appealed from the denial of the new
trial motion. That is incorrect.
II. DISCUSSION
Appellants do not challenge the finding that they caused extensive
damage by removing trees and doing other acts contrary to the Conservation
Easement. Instead, they contend the court should have (1) allowed them to
present evidence that PG&E had authorized appellants to remove the
Driveway Tree pursuant to the PG&E Easement, (2) not used Wheeldon’s
testimony to find that no one from PG&E gave such authorization, and (3)
granted a continuance of the trial. Their arguments are without merit.
A. Exclusion of Evidence of PG&E Authorization
Appellants first contend the court erred by ruling in limine that they
could not introduce evidence “concerning PG&E’s authorization” to remove
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“one or more” trees subject to the PG&E Easement.4 Their theory is that
PG&E was entitled under its easement to trim, cut down, and clear away
trees from the strip of land subject to its easement; PG&E retained this right
because the PG&E Easement is senior to the Conservation Easement (see
Pasadena v. California-Michigan Land & Water Co. (1941) 17 Cal. 2d 576,
583); and PG&E could authorize others to act on its behalf. On this basis,
appellants urge, if PG&E authorized appellants to remove the Driveway
Tree, appellants would not be liable for violating the Conservation Easement
(as to that tree), and so the evidence was relevant.
Appellants’ argument is meritless. As a matter of law, the court was
correct in concluding that the PG&E Easement did not empower PG&E to
uproot trees to landscape a home or authorize appellants to do so. As a
matter of the evidence, any error in this regard would have been harmless
anyway, because it became clear from the testimony that appellants’
representations of such an authorization were untrue.
1. Scope of the PG&E Easement
Easements convey an interest in real property limited to a “specific,
limited, definable use or activity upon another’s property.” (Mesnick v. Caton
(1986) 183 Cal. App. 3d 1248, 1261.) The easement can be used only for its
intended purposes. (Main Street Plaza v. Cartwright & Main, LLC (2011)
194 Cal. App. 4th 1044, 1054; Kerr v. Brede (1960) 180 Cal. App. 2d 149, 151.)
For an express easement such as PG&E’s, the text of the grant defines those
4 Despite appellants’ reference to “one or more” trees, the only oak at
issue is the Driveway Tree. As the trial court noted, “[t]estimony showed
that the Driveway Tree originally stood at the edge of PG&E’s easement but
the Dead and Boulder Trees were located on portions of the Easement outside
of PG&E’s utility easement.” Peter Thompson thought the Dead Tree was in
PG&E’s “right-of-way,” but he admitted that the Dead Tree was not part of
his discussion with Wheeldon.
18
uses. (County of Sacramento v. Pacific Gas & Elec. Co. (1987) 193 Cal. App. 3d
300, 313; Civ. Code, § 806 [“The extent of a servitude is determined by the
terms of the grant”]; City of Pasadena v. California-Michigan Land & Water
Co., supra, 17 Cal.2d at p. 579 [easements convey “only those interests
expressed in the grant and those necessarily incident thereto”].)
Where, as here, there is no extrinsic evidence as to the meaning of the
easement language, the interpretation is a question of law we review de novo.
(McManus v. Sequoyah Land Associates (1966) 240 Cal. App. 2d 348, 354;
T-Mobile West LLC v. City and County of San Francisco (2019) 6 Cal. 5th
1107, 1117.) Because we construe the easement using the rules employed for
interpretation of a contract, we must “give effect to the intent of the parties
as expressed in the language of the instrument as a whole.” (Concord & Bay
Point Land Co. v. City of Concord (1991) 229 Cal. App. 3d 289, 294.)
Here, the language of the PG&E Easement tells us that PG&E
obtained “the right to erect, construct, reconstruct, replace, remove, maintain
and use a line of towers with such wires and cables as [PG&E] shall from
time to time suspend therefrom for the transmission of electric energy, and
for communication purposes, and all necessary and proper foundations,
footings, crossarms and other appliances and fixtures for use in connection
with said towers, wires and cables, together with a right of way, on, along
and in all of the hereinafter described strip of those certain lands which are
situate in the [property].” Other rights were granted to support such use,
including the right of ingress to and egress from the strip, the right to install,
maintain and use gates, the right to mark the location of the strip, and “the
right from time to time to trim and to cut down and clear away any and all
trees and brush now or hereafter on said strip” and “to trim and to cut down
and clear away any trees on either side of said strip which now or hereafter
19
in the opinion of [PG&E] may be a hazard to said towers, wires or cables, by
reason of the danger of falling thereon.”
Viewing the text as a whole, the plain purpose of the PG&E Easement
was for PG&E to obtain the right to use a strip of land in order to construct
and maintain towers for energy transmission and communication, together
with such additional rights—including the right to trim and cut down and
carry away trees on that strip—as needed for that purpose.
Appellants argue that the easement’s reference to “ ‘purposes of energy
transmission’ ” describes only what the wires on the towers were for, and
PG&E’s right “ ‘to cut down and clear away any and all trees and brush now
or hereafter on said strip’ ” is not so limited. In fact, the right to cut down
and clear away any and all trees and brush on the strip is granted without
qualification, while the right to cut and clear away trees outside the strip is
limited to trees that PG&E believes to be “a hazard to said towers, wires or
cables, by reason of the danger of falling thereon.”
Appellant’s argument is unavailing. PG&E was a utility company, and
the only purpose indicated in the easement document was for PG&E to
maintain power lines. Nowhere in the PG&E Easement is there any
language that PG&E could trim, cut down and clear away trees for some
other purpose, and it would be unreasonable to conclude that PG&E could
take such actions for the purpose of landscaping some other parcel of land.
The fact that PG&E’s right to cut and clear trees outside the strip was
limited to trees posing a hazard to PG&E towers, wires, and cables only
confirms that the overall purpose of the PG&E Easement was to protect and
maintain those PG&E facilities and nothing else.5
5
Even appellants’ trial counsel seemed to agree at the in limine hearing
that PG&E’s rights were limited to its use of the power lines. Gorski argued
that PG&E could not do just anything it wanted, such as using a “defoliage”
20
Moreover, by its terms, the PG&E Easement allows PG&E only “to trim
and to cut down and clear away” trees. (Italics added.) It does not state that
PG&E can do what appellants did here—excavate the land, uproot the tree,
bulldoze a haul road outside the easement to a destination away from
PG&E’s lines, and replant the tree on another parcel of property. To the
contrary, PG&E’s access to its easement is expressly limited to “such route
. . . as shall occasion the least practicable damage.”
Because PG&E had no right under the PG&E Easement to uproot,
drag, and relocate trees from the Easement Property to the Henstooth
Property to satisfy appellants’ landscaping fancy, it had no right to authorize
appellants to do that either. (See Gurnsey v. Northern California Power Co.
(1911) 160 Cal. 699, 707.) And because PG&E had no right to authorize
appellants to move the Driveway Tree, any evidence that it did was
irrelevant. Accordingly, the court did not err in excluding evidence “that
there was an agreement between PG&E and the defendants that excused and
allowed for the relocation of the trees.”6
chemical to kill the grass, because the grass poses no danger to PG&E’s lines.
He stated: “I think you have to show that there’s some reasonable danger
that the brush or the trees posed to the transmission lines, whether it’s
causing a fire or growing into the lines, or maybe a disruption to foundation
like roots, causing a foundation disruption. [¶] And here, in this instance, a
large oak tree being removed with the roots, that easily affected the
foundation of the concrete base. I mean, what we’re really talking about here
is . . . the benefit of PG&E and the safety of the people there.” (Italics added.)
6
There was a second reason the court precluded evidence that PG&E
authorized appellants to remove the Driveway Tree: even if PG&E did have
the right to remove a tree from its easement for landscaping purposes, as a
matter of law it had no authority to transfer that right to the Thompsons to
relocate the Driveway Tree, “particularly without complying with the
Conservation Easement[‘]s provisions that were a part of the written Trust
that required written approval.” In other words, regardless of what PG&E
21
2. Harmless Error
An erroneous preclusion of evidence does not compel reversal unless it
is reasonably probable that the admission of the evidence would have
resulted in a more favorable outcome at trial. (Aaron v. Dunham (2006) 137
Cal. App. 4th 1244, 1253; see Evid. Code, § 354 [judgment shall not be set
aside due to the erroneous exclusion of evidence unless there resulted a
miscarriage of justice].) Here, even if the court had erred in precluding
evidence that PG&E authorized the removal of the Driveway Tree, the error
would be harmless because, as later revealed at trial, appellants’ assertion
that Wheeldon had provided such authorization turned out to be a falsehood.
Wheeldon testified that he never gave Peter Thompson permission to
remove the Driveway Tree, he did not tell Thompson that PG&E was even
going to trim that tree, and he stated instead that PG&E would likely never
have to trim that tree in its lifetime. After Wheeldon testified, Thompson
admitted the falsity of his statement that the oak tree was marked for
topping by PG&E, and he conceded that he never talked to Wheeldon about
PG&E topping it. Appellants’ “saving the tree” story was a sham.
Appellants argue in their reply brief that, even though Thompson
admitted at trial that Wheeldon did not give him permission to move the tree,
he did not concede that no one from PG&E authorized him to move the tree,
and they could have put on evidence that someone other than Wheeldon
provided the authorization. Their argument rings hollow. Neither in the
told them, appellants were bound by the Conservation Easement’s
prohibitions and had no right to remove any trees from the Easement
Property. We need not resolve the issue in light of our conclusion ante that
PG&E had no right under the PG&E Easement to authorize appellants to
remove trees for their landscaping purposes, and our conclusion post that any
error in the trial court’s legal analysis was harmless.
22
trial court nor in this court have appellants identified any evidence that
PG&E authorized appellants to remove the Driveway Tree.
In their opening brief, appellants identify only one specific piece of
evidence in this regard. They assert: “as explained at the hearing on the
motion for a new trial, the defendants could have called Eric Brown of PG&E
to testify, and discuss, inter alia, the voicemail he left on July 6, 2015, about
PG&E’s rights in the trees under the powers [sic].” (Italics added.)
Appellants do not tell us what the voicemail was, what Brown would have
said about it, any authority Brown had to speak on behalf of PG&E in regard
to the PG&E Easement, when appellants requested the court to allow such
evidence, or any offer of proof appellants made to the court during trial.
Their citation to the record takes us to the reporter’s transcript of the
hearing on their new trial motion, which refers to an “Exhibit 233” that
apparently was marked for identification at trial but not admitted into
evidence. Exhibit 233 included an email from the Trust’s Simons to Eric
Brown, indicating they had exchanged voicemails in late June and early July
2015 and Simons was inquiring about PG&E’s ownership of trees under the
power lines. That does nothing to show any authorization by PG&E to
remove the Driveway Tree, let alone any capacity of Eric Brown to grant such
authorization. Nor did appellants include Eric Brown on their witness list or
mention him in opposing the Trust’s in limine motion regarding PG&E’s
alleged authorization or, as far as we are told, at any other time during the
trial testimony.
In their appellate reply brief, appellants refer to another piece of
evidence, Exhibit 218-A, which included emails between Wheeldon and Peter
Thompson. At trial, appellants’ counsel tried to ask Thompson about the last
23
page of that exhibit, identified as SLT6665.7 Page SLT6665 contains an
email from Thompson to Wheeldon stating he was moving two oak trees, and
an email from Wheeldon to Thompson noting that Wheeldon had talked to
Eric Hess (the Thompsons’ contractor), who had explained the “scope of the
work that he is going to be doing for you and everything sounds good.”
(Italics added.) It is unclear what “scope of work” Hess mentioned to
Wheeldon, but even assuming it was in line with Thompson’s statement that
he was moving two oak trees, the emails do not show that PG&E had granted
to appellants any right PG&E might have had to move trees pursuant to the
PG&E Easement. At best, the emails suggest that Wheeldon did not care if
appellants took the trees for themselves—a far cry from any authorization
that could have insulated appellants from the restrictions of the Conservation
Easement.
Nothing in these documents supports the idea that appellants would
have done better at trial if they had been allowed to introduce evidence that
they were authorized by PG&E to remove the Driveway Tree. Nor is there
any indication that appellants have any other evidence to help them.
Although not mentioned in their appellate briefs, their new trial motion
referred to an “Exhibit . . . 218-B,” but nothing suggests they would have
ridden that document to victory either.
7 Appellants’ counsel directed Thompson’s attention to page SLT6665 of
Exhibit 218-A and, without moving the document into evidence, asked
Thompson, “What was your understanding as to what Greg Wheeldon was
conveying to you at that point in time?” The Trust’s attorney objected on the
grounds of hearsay, lack of foundation, and the court’s in limine ruling
regarding the PG&E Easement. The court responded: “Sustained. [¶] It
also calls for speculation. [¶] Please continue Mr. Gorski.” Without laying a
foundation, making an offer of proof, or attempting to introduce the document
into evidence, appellants’ counsel moved on to a different exhibit.
24
The fact is, from the time appellants were caught moving the Driveway
Tree through the time of trial, appellants had represented to the Trust and to
the court that it was “Greg” Wheeldon who said PG&E was going to top the
Driveway Tree and authorized appellants to remove it. We are not pointed to
anywhere in the record when appellants stated that anybody else had given
such authorization, and no such person is mentioned in appellants’ trial brief,
their witness list, their written opposition to the in limine motion, or their
argument at the hearing on the admissibility of Wheeldon’s evidence. The
existence of such a person seems implausible, since it was Wheeldon to whom
Peter Thompson turned when he needed someone to vouch for his story that
PG&E had authorized the tree removal. And then at trial, Wheeldon
testified that he did not tell Thompson that PG&E was going to top the tree
or authorized appellants to remove it, Thompson confessed his false
statement, and appellants did not present evidence or an offer of proof of
anyone else who gave appellants the alleged authorization. Having observed
the trial testimony, the court found that Thompson and most of appellants’
witnesses were not credible, based on the court’s personal observations of
their demeanor. Accordingly, even if the court had erred and PG&E did have
the authority under the PG&E Easement to authorize appellants to remove
the Driveway Tree, there is no reasonable probability appellants would have
been able to prove such authorization and done better at trial.
B. Use of Wheeldon’s Testimony
Appellants next contend the trial court erred by allowing Wheeldon to
testify about his conversations with Peter Thompson and using that evidence
to find that no one at PG&E authorized appellants to relocate the Driveway
Tree, particularly since they were precluded from submitting evidence that
PG&E did offer such authorization. Appellants’ argument, essentially, is
25
that Wheeldon’s testimony was admitted only for the limited purpose of
Thompson’s credibility (as it related to the disputed issues of the Trust’s
mitigation of damages and staff costs), not for the purpose of evaluating
whether an authorization by PG&E had occurred.
We need not decide this issue. As concluded ante, as a matter of law
PG&E did not have the legal right to authorize appellants to remove the
Driveway Tree. Therefore, whether the court properly found that PG&E did
not purport to give such an authorization is beside the point. Put another
way, even if the court had not found that PG&E never authorized appellants
to move the Driveway Tree, or the court was legally precluded from making
that finding, appellants would not have obtained a better outcome at trial.
Furthermore, as also concluded ante, appellants have not identified any
evidence they could have introduced to demonstrate authorization by PG&E,
so any error by the court in finding no authorization, or barring such
evidence, was harmless.8
8
Appellants also assert in their statement of the issues and a heading in
their opening brief that the court erred in allowing Wheeldon to testify that
PG&E did not allow Peter Thompson to move trees from its easement. They
do not pursue this point in the text of their briefs, focusing instead on the
idea that the court erred in using Wheeldon’s testimony to find that no PG&E
representative had authorized the trees’ removal. Any challenge to the
admissibility of Wheeldon’s testimony is therefore waived. At any rate,
appellants have not shown an abuse of discretion in admitting Wheeldon’s
testimony for the limited purpose of challenging Thompson’s credibility.
(Corenbaum v. Lampkin (2013) 215 Cal. App. 4th 1308, 1330 [evidence ruled
inadmissible for one purpose may be relevant and admissible for another
purpose]; Evid. Code, §§ 210 [relevance], 780 [credibility]; Leader v. Cal.
(1986) 182 Cal. App. 3d 1079, 1091 [admissibility of evidence for limited
purpose of impeachment]; People v. Morrison (2011) 199 Cal. App. 4th 158, 165
[evidence collateral to issues in the trial was relevant to credibility because it
contradicted defendant’s testimony].)
26
C. Request for Continuance
“To ensure the prompt disposition of civil cases, the dates assigned for a
trial are firm.” (Cal. Rules of Court, rule 3.1332(a).) “[C]ontinuances of trials
are disfavored” and may be granted only upon “an affirmative showing of
good cause.” (Cal. Rules of Court, rule 3.1332(c).) Good cause may arise due
to the “unavailability of trial counsel” because of “excusable circumstances,”
but the court must consider all the relevant facts and circumstances, which
may include the proximity of the trial date, whether there were prior
continuances, the length of the requested continuance, the availability of
alternative means to address the problem, prejudice to the parties, and
whether the parties stipulated to the continuance. (Cal. Rules of Court, rule
3.1332(c), (d).) We review for an abuse of discretion. (Forthmann v. Boyer
(2002) 97 Cal. App. 4th 977, 984.)
The court acted well within its discretion in denying the requested
continuance based on the information Gorski provided. Gorski did not file his
request until three days before trial. The trial had been postponed
previously. Gorski’s claimed need for the continuance was merely that a
“material change” in his family circumstances would result in “substantial
interference” with his ability to provide effective counsel, and that he “could
not be [in court] on certain days” because he had “things going on.”
Acknowledging Gorski’s situation, the court reiterated the general policy
against postponing trial dates, noted the “lengthy history” of the case and the
likelihood that changing trial dates would cause other conflicts, and observed
that even without a continuance the trial would not begin for two to three
more days and would be in session only four days a week until 1:30 p.m. The
court offered Gorski multiple opportunities to address the court’s view and
express any additional concerns.
27
Appellants instead attack the court for not holding an in camera
hearing, claiming that Welfare and Institutions Code section 827 (section
827) prevented Gorski from “presenting most of the underlying facts about
his ongoing dependency proceeding,” which “would have shown that he had
good cause for a continuance.” Appellants say the court “did not take the
time to hear from Mr. Gorski in camera,” “declined to give Mr. Gorski an
opportunity to explain the specifics of his situation in camera,” “refuse[d] to
spend the necessary time to hear the relevant facts in camera,” and “denied
them a continuance without even examining the relevant evidence.” In their
reply brief, appellants go so far as to insist the court “abused its discretion in
refusing to hear defense counsel Gary Gorski explain in camera why he had
good cause for requesting a continuance, where the law precluded him from
discussing that cause in public.” (Italics added.) Appellants’ fixation on an in
camera hearing and section 827 misses the mark.
Appellants’ aspersion that the court “refused” a request by Gorski to
hold an in camera hearing misstates the record. Gorski merely averred in his
declaration that he was “willing to explain the nature of [the dependency
proceeding] in camera.” (Italics added.) At no time before or during the
courtroom hearing did Gorski ever ask to be heard in camera, or explain what
type of details could be revealed in camera, despite the court’s repeated
invitation for him to present his position. Indeed, when asked, “Do you wish
to be heard further, Mr. Gorski, on your Motion to Continue this trial?”
Gorski replied, “No, Your Honor. You addressed the issues. You know where
I stand.” The court did not abuse its discretion in denying the continuance
without an in camera proceeding.
Furthermore, appellants’ argument concerning an in camera hearing
and section 827 is unavailing—for several reasons. First, if indeed Gorski
28
wanted to tell the court more about the dependency proceedings, appellants
have not shown that he needed an in camera hearing (or in camera review) to
do so. Section 827 limits the inspection and dissemination of a juvenile
dependent’s case file. It allows “[c]ourt personnel” to inspect the case file and
receive a copy of it (§ 827, subd. (a)(1)(A), (a)(5)), and the case file may be
disclosed to others and attached to another document with approval from the
juvenile court (§ 827, subd. (a)(1)(Q), (a)(4)). (See Cal. Rules of Court, rule
5.552; Super. Ct. Sonoma County, Local Rules, rule 10.17.) Even if this
limited the dissemination of details in a public courtroom, appellants have
demonstrated that the statute did not necessitate an in camera hearing for
disclosure of the facts they now say the court should have heard, because
appellants have revealed all those details in public court documents they filed
after appellants lost at trial, including Gorski’s April 2019 declaration, his
declaration in support of the new trial motion, and appellants’ briefs in this
court.
Second, there was no need for an in camera hearing to explain the
nature of the dependency proceeding, because the nature of the dependency
proceeding was not at issue. What mattered was the impact the dependency
order had on Gorski’s ability to start the trial in this case. Nothing in section
827, or the absence of an in camera hearing, precluded Gorski from telling
the court what he has now alleged, such as his inability to stay in Santa Rosa
for trial, his need to commute hours each day, the limitations on his time for
preparing witnesses, and the like—even though it was this commute that
Gorski later called “the single most significant factor in impeding my ability
to provide effective assistance of counsel.” 9 In the words of appellants’
9 Appellants say the “confidential details” they are unable to disclose in
their opening brief are the “names of the mother or daughter, the nature of
29
subsequent counsel, Richard Freeman—one of their attorneys in this
appeal—at the hearing on the new trial motion: “I’m sure that [Gorski] could
have, should have, maybe should have apprised [the trial judge] more
specifically of what he was dealing with in connection with that motion to
continue trial. And I can’t speculate as to why he didn’t.”
Third, even if an in camera hearing had been held, appellants do not
show that Gorski would have disclosed to the trial court the facts now
included in their appellate briefs. Gorski did not state in his declarations
what he would have said in camera. To the contrary, Gorski told the court
after the trial was over, “Initially, I did not realize, nor could I, the impact
that the sudden and unexpected change would have on my ability to
represent the Thompsons in the [t]rial.” (Italics added.)
Finally, even if the trial court had held an in camera hearing and been
apprised of all of the facts appellants now present, there is no reasonable
probability that appellants would have obtained a better outcome in the trial.
The trial had been set for July 27. Gorski requested a continuance of just five
court days and at the hearing represented that he would be ready for trial on
August 3 or 6. As the court explained, even without granting the
continuance, trial did not begin until August 1, when the court made its in
limine ruling that was correct as a matter of law. Appellants fail to show
that if the court had started the 19-day trial on August 3 instead of August 1,
there is a reasonable chance the trial would have turned out any better for
them. Appellants fail to establish error.10
the abuse, the specific medical treatments, or the types of therapy, family
services, and social services involved.”
10
In footnote 5 of appellants’ opening brief, appellants assert that the
Final Statement of Decision makes conclusions about the application of the
conservation easement statute to third parties, but this court need not rule
30
III. DISPOSITION
The judgment is affirmed.
on that issue. The Trust responds that the court properly enforced the
easement against Henstooth Ranch LLC, even though it was not a party to
the easement. Amici comment on the argument as well. But because
appellants did not provide substantial argument supported with citation to
authority in their opening brief (Cal. Rules of Court, rule 8.204(a)), and have
not even urged us to consider the matter, we do not decide the issue. We
therefore affirm the judgment without there being any challenge to the trial
court’s ruling on this point.
31
NEEDHAM, .J.
We concur.
SIMONS, Acting P.J.
REARDON, J. *
Sonoma Land Trust v. Thompson / A157721
* Judge of the Superior Court of Alameda County, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
32