Dolnikov v. Ekizian , 165 Cal. Rptr. 3d 658 ( 2013 )

Filed 12/19/13
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
FLORA DOLNIKOV, B226675
Plaintiff, Cross-defendant and (Los Angeles County
Respondent, Super. Ct. No. BC321215)
v.
DIKRAN EKIZIAN et al.,
Defendants, Cross-complainants and
Appellants.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Robert L. Hess, Judge. Affirmed.
Law Offices of Herbert Hafif, Herbert Hafif, Greg K. Hafif; and Mark C. Calahan
for Defendants, Cross-complainants and Appellants.
Timothy D. McGonigle Prof. Corp. and Timothy D. McGonigle for Plaintiff,
Cross-defendant and Respondent.
Melvin Teitelbaum for Westmac Investment Ventures, LLC and Erina Gilerman
as Amicus Curiae on behalf of Plaintiff, Cross-defendant and Respondent.
*
Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is
certified for partial publication. The portions of this opinion to be deleted from
publication that are enclosed within double brackets, [[ ]].
INTRODUCTION
We hold in this appeal that conduct can constitute actionable interference with the
use and enjoyment of an easement even when the conduct does not physically obstruct
the servitude. The easement in question is for ingress and egress to undeveloped lots in
the Hollywood Hills. Plaintiff Flora Dolnikov, owner of the dominant tenement, was
interrupted during her construction of two residences by defendants Dikran Ekizian and
Diramesi Investments, LLC (defendants or Ekizian), the servient tenement owners who
refused to sign both a covenant for community driveway and permission for a building
permit to construct a retaining wall. The City of Los Angeles Department of Building
and Safety (LADBS) required defendants’ signatures before it would issue plaintiff the
permits necessary to make the easement roadway useable for its intended purpose.
Plaintiff sued defendants seeking declaratory relief and damages. Defendants appeal
from the ensuing judgment entered in favor of plaintiff. In the published portion of this
opinion, we hold that the evidence supports the jury’s finding that defendants
unreasonably interfered with plaintiff’s use and enjoyment of the easement. In the
unpublished portion of this opinion, we reject defendants’ remaining challenges.
Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. The easement
In 1998, plaintiff acquired undeveloped Lots 29 and 30 in Tract 4202 located
above Laurel Canyon. Her neighbor to the north and east, Amnon Gad, through his
company, Amgad, Inc., owned Lot A, off of Floral Avenue, that consisted of four
undeveloped acres in Tract 4150.
In 1942, defendants’ predecessor in interest granted and recorded the easement at
issue to plaintiff’s predecessor in interest (the easement). The easement provides in
relevant part:
2
“EASEMENT – GENERAL
“A strip of land 14 Ft. wide, 7.00 Ft on each side of the following described center
line [beginning, curves, and ending described]. The foregoing described Right of Way is
now improved and is used by the Bureau of Water Works and Supply of the City of Los
Angeles, California [now the Los Angeles Department of Water and Power
(LADWP)] . . . . NOW, THEREFORE, it is hereby agreed as follows: The said
[defendants’ predecessor] does hereby grant, assign and set over to the said [plaintiff’s
predecessor] . . . A right of way for ingress and egress over the above described property
for street purpose for the benefit of Lots 29 and 30 of Tract 4202 . . . . TO HAVE AND
TO HOLD the said easement, right and right-of-way unto [plaintiff’s predecessor], his
successors or assigns for a period of perpetuity. . . .” (Italics added.)
The easement begins at the top of Floral Avenue at the south end of Lot A. It runs
on the Lot A side of the property line with plaintiff’s properties, uphill and roughly north
in a wide curve, concave to the east, around a hill on Lot A and ending at a point in Lot A
that is even with the northern boundary of plaintiff’s properties to the west. (A copy of a
schematic is attached as an appendix to this opinion.)
In 2001, plaintiff obtained permits from LADBS to construct two houses on her
land, to be designated 8027 and 8031 Floral Avenue. Her permit application included an
unrecorded covenant and agreement for a community driveway executed in 1999 by
defendants’ predecessor, Mr. Gad. LADBS issued the permits with the understanding the
driveway would be 14 feet wide, the width of the easement, notwithstanding the zoning
code required a 20-foot width.
In June 2002, while plaintiff’s construction was in progress, Amgad, Inc. sold Lot
A to defendant Diramesi Investments, LLC, a company owned by defendant Ekizian.
Defendants purchased Lot A for investment purposes with full knowledge of the
easement and plaintiff’s development.
2. The cut and the retaining wall permit
Plaintiff’s architect designed both residences so that their front doors and garages
faced roughly east toward the easement. The slope of the easement was too steep and the
3
right of way had fallen into disrepair so that all that remained of the original pavement
was substantially covered with dirt and rocks from uphill. As such, the easement was
unsuitable for ingress and egress to plaintiff’s property. One of the first steps plaintiff
took was to improve the easement roadway so that it could be used for access to
plaintiff’s houses. LADBS approved a grading plan to lower the ground in the upper end
of the easement to allow greater and more level access into the garage for 8031 Floral
Avenue, on old Lot 29. The grading would lower the soil level about six to eight feet
below the level of what is the continuation of the old LADWP right-of-way at the end of
the easement leading north into defendants’ property. The cut would create a roughly
vertical face adjacent to the property line that needed shoring to stabilize the steep slope
on defendants’ property and to comply with the building code. To stabilize the slope, the
grading plan called for a retaining wall to be constructed across the face of the cut along
the Lot A (or defendants’) side of the easement and perpendicular across the end of the
easement where the LADWP right-of-way continues into Lot A.
After making the cut into the soil on the easement according to the approved
grading plans, plaintiff discovered there was no permit to construct the retaining wall in
the LADBS files. When she went to apply for the missing permit, she learned that
Ekizian had complained and questioned plaintiff’s right to build on his property.
3. LADBS stops work on plaintiff’s project and revokes her permit.
LADBS notified plaintiff in June 2004 of its intent to revoke her building permits.
LADBS explained that, among other things, the community driveway covenant from Gad
was invalid because it was unrecorded, and LADBS required a new covenant signed by
Ekizian as current owner of the property.
Plaintiff had numerous conversations with defendants, during which it became
clear that Ekizian opposed her right to build. Ekizian did not recognize the unrecorded
community driveway covenant from Gad; did not acknowledge plaintiff’s easement
rights; insisted the driveway had to be 20 feet wide per then-current code requirements,
not the 14-foot width of the easement; and complained that he was damaged by her
grading cut into the side of the easement. Ekizian demanded $100,000, then $200,000
4
from plaintiff. He stated variously that the money represented damages, or was a
prerequisite to talks. He also demanded plaintiff cut into his hill, build a 20-foot wide
road, buy a $1 million insurance policy naming him, and erect a retaining wall to his
specifications for width, depth, and paint, before he would sign the community driveway
covenant. Plaintiff felt Ekizian was “just trying to extort money,” and she could not
comply with what she thought were Ekizian’s “outrageous” demands.
In the absence of defendants’ signatures, LADBS issued a stop-work order in June
2004 and revoked plaintiff’s permits in late July 2004, bringing to a halt work on the
driveway that provided access to the houses. At the time, plaintiff’s houses were in the
framing stage, with exposed wood and no roof and so they posed a fire hazard. LADBS
would only reinstate the original permits if plaintiff recorded a community driveway
covenant signed by Ekizian. Ekizian refused to sign.
Plaintiff filed applications with LADBS for a garage in a different place on Lot 30
and a new garage for Lot 29 with access from Seaview Trail to the west instead of the
easement. In 2005, LADBS issued permits with the condition that the certificate of
occupancy for the dwelling would not be issued until the detached garage accessible from
Seaview Trail was completed or until a properly executed community driveway covenant,
approved by LADBS, was recorded. Ekizian still refused to sign a new community
driveway covenant.
4. The instant lawsuit
Meanwhile, in September 2004, plaintiff filed her complaint against defendants
seeking damages for interference with her easement, injunctive relief, and a declaration
of the parties’ rights and duties under the easement. Defendants cross-complained
seeking damages for, among other things, trespass, negligence, and nuisance by failing to
maintain the easement and by improperly excavating a seven-foot cut on defendants’
property without defendants’ consent. The matter was bifurcated.
5. The declaratory judgment after bench trial
After a bench trial on the declaratory relief question, the trial court found, based
on the wording of the 1942 deed, that the easement provided for a 14-foot-wide right-of-
5
way for ingress and egress from Lots 29 and 30 onto Floral Avenue that did not exclude
use by the servient tenement owners that was consistent with plaintiff’s normal use of the
easement. As for the grading and retaining walls as shown on plaintiff’s approved
grading plan, the court found they were necessary for the use of the easement for its
expressly intended purpose by plaintiff, the owner of the dominant tenement, and that
their presence was not in any sense inconsistent with the nature of the easement and were
authorized by the easement. The court reasoned that the retaining wall along the roadway
parallel to the easement’s length was necessary to prevent earth from re-covering the road
surface and interfering with the dominant tenement’s use of the easement as a driveway.
Thus, the retaining wall was the type of permanent structure that was a “ ‘necessary
incident’ ” of the easement.
The grading cut and the retaining wall at the end of the easement were also
necessary to enable plaintiff’s use of the full extent of the easement as a right-of-way for
ingress and egress, the trial court found. However, that retaining wall at the end of the
easement also constituted a barrier to defendants’ access from the easement to his Lot
along the continuation of the DWP right-of-way. The court found that the solution to this
obstruction was found on defendants’ property, in that the retaining wall across the end of
the easement would become unnecessary if the grade up what is the extension of the
DWP right-of-way into Lot A, were ever modified to permit vehicular access.
6. Plaintiff’s persisting permit troubles
In 2009, LADBS issued a retaining wall permit for 8030 Floral Avenue and
plaintiff was able to resume construction. However, LADBS revoked that permit because
defendants refused to give permission for it, even after the trial court declared the wall to
be a necessary part of the easement. As of trial, plaintiff had no retaining wall permit and
so LADBS would not conduct a final inspection of her property to issue her occupancy
certificates.
7. The jury trial and verdicts
At trial, plaintiff adduced evidence that defendants committed the following four
specific acts that she believed constituted interference with her use and enjoyment of the
6
easement: Ekizian’s (1) refusal to sign the covenant for community driveway; (2) refusal
to sign a retaining wall permit which was a prerequisite to plaintiff’s occupancy
certificate; (3) demands for money in exchange for granting plaintiff’s rights she already
possessed in the easement; and (4) statements that plaintiff lost her easement by creating
the grading cut and burdening the easement.
Defendants moved for nonsuit and then directed verdict on the grounds that these
four acts or refusals to act did not interfere with plaintiff’s easement. Plaintiff countered
that the easement created a covenant running with the land that is a contract into which a
covenant of good faith and fair dealing could be implied. Defendants argued that as a
matter of law, a covenant of good faith and fair dealing cannot be implied into an
easement created by grant deed. The trial court agreed with plaintiff that the deed was
also a covenant running with the land and allowed her to so amend her complaint.
The jury answered special questions finding that defendants substantially and
unreasonably interfered with plaintiff’s use and enjoyment of her easement by acting or
failing to act, and next that defendants breached the implied covenant of good faith and
fair dealing contained in the easement’s running covenant. On defendants’ complaint, the
jury also found that plaintiff breached the implied covenant of good faith and fair dealing.
The trial court entered its judgment awarding plaintiff $713,927.96 in damages
and interest, but ordering her to remove that portion of the retaining wall across the end
of the easement at her expense if the grade up what was the extension of the DWP right-
of-way onto Lot A, is modified pursuant to permits from LADBS. The court
permanently enjoined defendants from interfering with plaintiff’s easement, including
interfering with the construction, maintenance, and repair of the retaining wall.
Recognizing that LADBS required the servient tenement owner to sign permission for the
retaining wall before it would inspect and issue certificates of occupancy, the court
ordered defendants to sign the necessary forms, if and when requested. The court
retained equitable jurisdiction in recognition that plaintiff continued to suffer damages
7
every day that her use of the easement was infringed. Defendants’ timely appeal ensued.
Additional facts will be presented with the relevant issue in the discussion section.1
[[Begin nonpublished portion]]
[[CONTENTIONS
Defendants’ opening brief lists eight questions presented at pages 13 and 14.
However, the discussion section raises and discusses only five specific contentions that
are actually supported with reasoned argument and citation to authority. All “questions
presented” that are not supported with reasoned argument are forfeited. (Badie v. Bank of
America (1998) 67 Cal.App.4th 779, 784-785 [failure to support contention with
reasoned argument and citations to authority forfeits argument].) The contentions
actually addressed and not forfeited, are:
“A. The Deed at Issue Is a Non-exclusive Ingress and Egress Easement for Street
Purposes. It is a Property Interest and Not a Covenant Running with the Land.”
“B. All Four Purported Acts of Interference, Which Appellee Claims Rise to the
Level of Nuisance Are Barred by the Litigation Privilege of Civil Code Section 47(b).”
“C. Settlement discussions are not actionable and the evidence should not have
been allowed.”
“D. Appellee’s Theory of Nuisance Is for a ‘Continuing Nuisance’ for Which
Only Damages That Accrued Prior to the Filing of the Action Are Recoverable and
Appellee Recovered Damages That Accrued after the Lawsuit was Filed.”
“IX. Dikran Ekizian is not personally liable.” (Capitalization omitted.)]]
[[End nonpublished portion]]
DISCUSSION
[[Begin nonpublished portion]]
1
During pendency of this case, plaintiff filed for bankruptcy protection and the
property was sold. We allowed the new owners, Westmac Investment Ventures, LLC
and Erina Gilerman, to file a brief as Amicus Curiae.
8
[[Review of this appeal has been significantly hampered by defendants’ appellate
briefing. The first 12 pages of the opening brief contain a laundry list of asserted trial
court errors, sometimes supported by a citation to authority. The first 12 pages appear to
constitute a summary of what is to follow in the discussion section of the brief, as they do
not contain much in the way of legal analysis. Yet, upon further review, many of the
assertions in the first 12 pages prove to be unconnected to the contentions actually
analyzed in the brief’s discussion section. The discussion section of the opening brief is
where defendants as appellants “should address all issues to be raised on the appeal,
incorporating sound argument and supporting legal authorities.” (Eisenberg et al., Cal.
Practice Guide: Civil Appeals and Writs (The Rutter Group 2013) ¶ 9:160, p. 9-49
(rev. #1, 2012).) We will therefore treat the errors listed in the first 12 pages of
defendants’ opening brief as forfeited, to the extent they are not further developed in the
discussion portion of the brief. “ ‘We are not bound to develop appellants’ arguments for
them. . . . The absence of cogent legal argument . . . allows this court to treat the
contention as waived.’ [Citations.]” (Cahill v. San Diego Gas & Electric Co. (2011)
194 Cal.App.4th 939, 956.) This is particularly so in an appeal of this size with 18
volumes of reporter’s transcript and eight volumes of clerk’s transcript.
Compounding our difficulties in addressing this appeal is the failure of defendants
as appellants to set forth the facts in the context of the proper standard of review, in
violation of essential rules of appellate briefing. (Sebago, Inc. v. City of Alameda (1989)
211 Cal.App.3d 1372, 1388.)
We turn to the arguments defendants actually raised and supported with reasoned
argument and address them seriatim.
A. Defendants have not demonstrated prejudicial error from the inclusion of
causes of action for breach of the implied covenant of good faith and fair dealing in both
plaintiff’s and defendants’ special verdict forms.
Asserting that easements and running covenants are distinct legal concepts,
defendants contend as their overarching assignment of error that the easement deed did
not convey a covenant running with the land. They explain that where the deed conveyed
9
an easement, which is governed by property law, the trial court erroneously read into it a
running covenant, which is governed by contract law, and then exacerbated the error by
allowing the jury to determine whether defendants’ four acts breached the covenant of
good and fair dealing implied in that running covenant. Defendants conclude by arguing
that the trial court committed “prejudicial error” in “instruct[ing] the jury that the deed in
question was both an easement and a covenant running with the land. This prejudicial
error then allowed [plaintiff] to boot strap what she considered to be unreasonable
conduct as a breach of the implied covenant and therefore as an interference with
easement.”
We need not reach the question whether this deed conveyed both an easement and
a covenant running with the land because defendants’ contention here is unavailing for
three reasons.
1. Defendants did not demonstrate trial court error.
Insofar as defendants assign instructional error, their opening brief does not cite us
to the relevant instruction actually given. Defendants cite us to their proposed
instructions, but not to the court’s refusal to give those instructions. It is the appellants’
duty to refer the reviewing court to the portion of the record that supports the contentions
on appeal. We are not required to conduct an independent, unassisted study of the record
in search of grounds to support defendants’ contention. (Guthrey v. State of California
(1998) 63 Cal.App.4th 1108, 1115.) Furthermore, although defendants as appellants gave
a general recitation of the standard of review for abuse of discretion and sufficiency of
the evidence at the beginning of their argument section of their opening brief, they did
not cite us to authorities for the appropriate standard of review for instructional error, or
tailor their argument on this issue to the applicable standard of review, in violation of
basic rules of appellate briefing. (Sebago, Inc. v. City of Alameda, supra, 211 Cal.App.3d
at p. 1388.) Defendants omitted to discuss how the trial court’s decision to instruct the
jury on the implied covenant of good faith and fair dealing exceeded the bounds of
reason. Therefore, defendants failed to show abuse of trial court discretion. (Gombiner
v. Swartz (2008) 167 Cal.App.4th 1365, 1374-1375.)
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2. Defendants were not prejudiced by this claimed error.
Even were the instruction erroneous, defendants were not aggrieved, i.e.,
prejudiced, by the trial court’s decision to instruct the jury on both plaintiff’s and
defendants’ causes of action for interference with easement and breach of the covenant of
good faith implied in a running covenant. “No judgment shall be set aside, or new trial
granted . . . on the ground of misdirection of the jury, or of the improper admission or
rejection of evidence . . . or for any error as to any matter of procedure, unless . . . the
error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. 6, § 13;
Code Civ. Proc., § 475.) We do not presume prejudice from an error. It is the appellant’s
burden to persuade us that the trial court erred in ways that resulted in a miscarriage of
justice. (See, e.g., Vaughn v. Jonas (1948) 31 Cal.2d 586, 601.)
“A party is aggrieved only if its ‘rights or interests are injuriously affected by the
judgment.’ [Citation.]” (Sabi v. Sterling (2010) 183 Cal.App.4th 916, 947.) Such rights
or interests “ ‘ “must be immediate, pecuniary, and substantial and not nominal or a
remote consequence of the judgment.” ’ [Citation.]” (County of Alameda v. Carleson
(1971) 5 Cal.3d 730, 737.)
On the cause of action for interference with easement, the jury found in plaintiff’s
favor. Although the jury separately found defendants breached the implied covenant of
good faith, it only awarded plaintiff $1.00 for that breach. Clearly, the jury considered
these causes of action separately and so there is no support for defendants’ contention
that plaintiff “boot strap[ped] what she considered to be unreasonable conduct as [bad
faith] and therefore as an interference with easement.” What is more important, however,
the jury also found that plaintiff breached the implied covenant of good faith causing
defendants damages in the amount of $30,000. The court then reduced plaintiff’s
recovery by $29,999, as an offset. Stated differently, regardless of whether the trial court
erred in including a cause of action for breach of the implied covenant, or whether a
covenant of good faith can be implied in this case, defendants prevailed on the cause of
action for breach of the implied covenant of good faith and fair dealing and so they were
not aggrieved or prejudiced by the inclusion of a special verdict on this cause of action.
11
3. The evidence supports the jury’s finding defendants interfered with plaintiff’s
use and enjoyment of the easement. ]]
[[End nonpublished portion]]
Defendants’ key assignment of error is the trial court’s determination that the 1942
deed was both an easement and a covenant running with the land into which the court
implied a further covenant of good faith and fair dealing. On this court’s own motion
after oral argument, we requested supplemental briefing on the question whether
defendants interfered with plaintiff’s easement, irrespective of any obligations that might
be impliedly contained in a covenant running with the land. Specifically, we asked
whether there was legal authority for the proposition that any of the following acts,
individually or in combination, constituted interference with plaintiff’s use and
enjoyment of the easement: Ekizian’s (1) refusal to sign a covenant for community
driveway; (2) refusal to sign a retaining wall permit; (3) demand for money in exchange
for granting plaintiff rights she already possessed in the easement; and (4) statements that
plaintiff lost her easement by creating the grading cut and burdening the easement. We
were concerned about whether an intangible act that did not physically invade the
easement, such as a statement or a refusal to sign documents, could constitute an
interference with the easement.
Defendants responded in supplemental briefing that the easement did not require
them to sign either document and there is no legal authority for the contention that
defendants’ refusal to cooperate constituted an interference with plaintiff’s use and
enjoyment of the easement. Defendants argue that plaintiff may enter over their property
to gain access to Floral Avenue, but “[n]othing more.” We disagree.
The grant of an easement must “be interpreted liberally in favor of the grantee.”
(Norris v. State of California ex rel. Dept. Pub. Wks. (1968) 261 Cal.App.2d 41, 46-47,
citing Civ. Code, § 1069.) When an easement is based on a grant, as it is here, the grant
gives the easement holder both “those interests expressed in the grant and those
necessarily incident thereto.” (Pasadena v. California-Michigan etc. Co. (1941)
17 Cal.2d 576, 579.) “Every easement includes what are termed ‘secondary easements;’
12
that is, the right to do such things as are necessary for the full enjoyment of the easement
itself.” (North Fork Water Co. v. Edwards (1898) 121 Cal. 662, 665-666.)
A secondary easement can be the right to make “repairs, renewals and
replacements on the property that is servient to the easement” (Donnell v. Bisso Brothers
(1970) 10 Cal.App.3d 38, 43) “and to do such things as are necessary to the exercise of
the right.” (Smith v. Rock Creek Water Corp. (1949) 93 Cal.App.2d 49, 53.) Thus,
where the easement was for flood control purposes, one court held, it carried a secondary
easement for repair of the channel including the right “to take earth, rock, sand and gravel
for the purpose of excavating, widening and deepening or otherwise rectifying the
channel and the maintenance and repair of embankments and other protection work.”
(Haley v. L. A. County Flood Control Dist. (1959) 172 Cal.App.2d 285, 290.) A right-of-
way to pass over the land of another carries with it “the implied right . . . to make such
changes in the surface of the land as are necessary to make it available for travel in a
convenient manner.” (Ballard v. Titus (1910) 157 Cal. 673, 681.)
Incidental or secondary easement rights are limited by a rule of reason. “The
rights and duties between the owner of an easement and the owner of the servient
tenement . . . are correlative. Each is required to respect the rights of the other. Neither
party can conduct activities or place obstructions on the property that unreasonably
interfere with the other party’s use of the property. In this respect, there are no absolute
rules of conduct. The responsibility of each party to the other and the ‘reasonableness’ of
use of the property depends on the nature of the easement, its method of creation, and the
facts and circumstances surrounding the transaction.” (6 Miller & Starr, Cal. Real Estate
(3d ed. 2011) § 15:63, p. 15-215.)
As applied to dominant owners, the rule of reason allows them to exercise
secondary easement rights “so long as the owner thereof uses reasonable care and does
not increase the burden on or go beyond the boundaries of the servient tenement, or make
any material changes therein.” (Ward v. City of Monrovia (1940) 16 Cal.2d 815, 821-
822; North Fork Water Co. v. Edwards, supra, 121 Cal. at p. 666; Haley v. L. A. County
Flood Control Dist., supra, 172 Cal.App.2d at p. 290.) A secondary easement may be
13
exercised “only when necessary and in such reasonable manner as not to increase the
burden needlessly on the servient estate or to enlarge it by alteration in the mode of
operation.” (Smith v. Rock Creek Water Corp., supra, 93 Cal.App.2d at p. 53.) The
easement owner does not have the right to “so change the surface of the land as seriously
to damage the usefulness of the servient estate . . . [¶] ‘It is well settled that the owner of
an easement cannot change its character, or materially increase the burden upon the
servient estate, or injuriously affect the rights of other persons, but within the limits
named he may make repairs, improvements, or changes that do not affect its substance.’ ”
(White v. Walsh (1951) 105 Cal.App.2d 828, 832, citing Burris v. People’s Ditch Co.
(1894) 104 Cal. 248, 252.) In Herzog v. Grosso (1953) 41 Cal.2d 219, the Supreme
Court held that the trial court properly recognized a right in the easement holder to
construct and maintain a wooden guard rail along the northerly boundary of the roadway
because, “[b]y the grant of the easement . . . [the easement holder] acquired the right to
do such things as are reasonably necessary to their use thereof. [Citations.]” (Id. at p.
225.) Where the road adjoined a steep embankment, guardrails were “reasonably
necessary and would not unduly burden the servient tenement.” (Ibid.)
Likewise, the servient owner “who holds the land burdened by a servitude”
(Rest.3d Property, Servitudes, § 4.9, p. 582) is held to the same reasonableness standard.
The servient owner is “entitled to make all uses of the land that are not prohibited by the
servitude and that do not interfere unreasonably with the uses authorized by the
easement . . . .” (Ibid.) “[T]he servient owner may use his property in any manner not
inconsistent with the easement so long as it does not unreasonably impede the dominant
tenant in his rights.” (City of Los Angeles v. Howard (1966) 244 Cal.App.2d 538, 543,
italics added.) “Actions that make it more difficult to use an easement, that interfere with
the ability to maintain and repair improvements built for its enjoyment, or that increase
the risks attendant on exercise of rights created by the easement are prohibited . . . unless
justified by needs of the servient estate. In determining whether the holder of the servient
estate has unreasonably interfered with exercise of an easement, the interests of the
parties must be balanced to strike a reasonable accommodation that maximizes overall
14
utility to the extent consistent with effectuating the purpose of the easement . . . and
subject to any different conclusion based on the intent or expectations of the parties . . . .”
(Rest.3d Property, Servitudes, § 4.9, pp. 582-583, italics added.)
Given that reasonableness depends on the facts and circumstances of each case,
“[w]hether a particular use of the land by the servient owner . . . is an unreasonable
interference is a question of fact for the jury. [Citations.]” (Pasadena v. California-
Michigan etc. Co., supra, 17 Cal.2d at pp. 579-580; see also Red Mountain, LLC v.
Fallbrook Public Utility Dist. (2006) 143 Cal.App.4th 333, 354.)
Here, in the declaratory relief portion of the trial, the court found “the grading and
retaining walls are necessary for the use of the easement for its expressly intended
purpose by Lots 29 and 30, and that their presence is not in any sense inconsistent with
the nature of the easement.”
As the grading and retaining wall are necessary incidents of, and not inconsistent
with, the easement for ingress and egress, they are secondary easements, and so plaintiff
was entitled to make the cut and build the wall in furtherance of her rights and her full
enjoyment of the easement. Plaintiff acted reasonably in grading and seeking to install
the retaining wall to prevent defendants’ land from eroding onto the roadway. She
followed the City’s requirements to merely excavate and make changes in the surface of
the land necessary to make the easement passable. The record showed plaintiff neither
went beyond the bounds of the easement, nor increased the burden needlessly, nor injured
defendants’ rights. Indeed, rather than damage the usefulness of, or unduly burden, the
servient estate, the evidence showed that by grading, plaintiff made the easement useable
“for street purpose,” and the retaining wall would prevent injurious impact on
defendants’ property. Therefore, plaintiff benefitted defendants in the event they seek to
develop their property.2
2
The trial court also found that the grading cut at the end of the easement
“constitutes a new barrier to access to [defendants’ property on Lot A] . . . which did not
previously exist” and that the City required a retaining wall across the cut there.
However, the court ordered plaintiff to remove that portion of retaining wall at her own
15
In contrast, Ekizian’s refusals to sign constituted an unreasonable interference
with plaintiff’s use and enjoyment of the easement. As servient owners, defendants are
also subject to the rule of reasonableness and mutual accommodation. The evidence
showed that LADBS required defendants’ signature on the covenant for community
driveway and their permission for the retaining wall permit. But defendants refused to
sign and so LADBS revoked plaintiff’s building permits forcing plaintiff’s construction
to come to a halt. Defendants were continuing to prevent plaintiff from obtaining
occupancy certificates even at the time the court entered judgment. Notwithstanding the
grading and retaining wall were necessary to make the easement useable as a right of way
for ingress and egress “for street purpose,” Ekizian’s refusal to sign these documents
impeded plaintiff’s rights and rendered plaintiff’s easement utterly useless for the
purpose for which it was intended. Fully aware before they purchased Lot A that plaintiff
was in the process of constructing two residences on her property that relied on the
easement, defendants nonetheless refused to accommodate plaintiff. There is no
evidence the signatures imposed a needless burden on defendants; the refusal to sign was
in no way justified by the needs of the servient estate, particularly because defendants
had no development plans at the time, and because the grading and retaining walls made
the easement passable and thus benefitted defendants’ property. By declining simply to
provide a signature on two documents required by the City, defendants interfered with
plaintiff’s ability to maintain and repair the easement, and rendered plaintiff’s use of the
easement, not simply more difficult, but impossible. In this manner, defendants’ action
of refusing to cooperate or reasonably accommodate constituted a complete and total
obstruction of plaintiff’s easement. The evidence supports the jury’s finding defendants
unreasonably interfered with plaintiff’s use and enjoyment of her easement. (Pasadena v.
expense if the grade up what was the extension of the DWP right-of-way into defendants’
property is modified with LADBS-issued building permits. Stated differently, the court
found that given the topography, there was a need for a temporary barrier, which wall
will be removed at plaintiff’s expense when access is appropriately required by
defendants.
16
California-Michigan etc. Co., supra, 17 Cal.2d at p. 579; see also Red Mountain, LLC v.
Fallbrook Public Utility Dist., supra, 143 Cal.App.4th at p. 354.)3
[[Begin nonpublished portion]]
[[B. The litigation privilege of Civil Code section 47, subdivision (b) does not bar
admission of the four alleged acts that plaintiff claims constitute unreasonable
interference with her use and enjoyment of the easement.
Returning to the four acts that form the basis of plaintiff’s cause of action for
interference with her easement, they are Ekizian’s: (1) refusal to sign the covenant for
community driveway; (2) refusal to sign a retaining wall permit; (3) demands for money;
and (4) statements that plaintiff did not have a valid easement because she over burdened
it. Defendants contend that all four of these actions are protected by the litigation
privilege of Civil Code section 47, subdivision (b) and so the trial court erred in refusing
to exclude testimony of these four acts.
1. Defendants never objected to the evidence of the four acts and invited any error
with the result they cannot be heard to complain on appeal that the evidence was
inadmissible.
The sole motion in limine in the record brought under Civil Code section 47,
subdivision (b) was defendants’ request to exclude “communications by Defendants . . .
and their agents, to the City of Los Angeles and any of its agencies such as the
Department of Building and Safety, the Department of Water and Power, the Zoning or
Planning Departments, among others . . . .” on the grounds they were privileged
communications. (Italics added.) The trial court granted this motion and instructed the
jury not to consider complaints defendants made to the City.
Defendants did not move in limine to exclude evidence of communications
between defendants and their agents on the one hand and plaintiff and her agents on the
3
As the result of our holding that defendant’ refusal to sign the two documents
required by the City constituted and interference with plaintiff’s easement rights, we need
not decide whether a statement such as the two at issue here might constitute an
interference with the easement.
17
other. During trial, defendants cross-examined plaintiff at length about the four acts and
how she claimed they caused her damage. Only after trial, when they sought instructions
and when they moved for directed verdict, did defendants claim the already-admitted
evidence was privileged.
“ ‘Under the doctrine of invited error, where a party, by his conduct, induces the
commission of an error, he is estopped from asserting it as grounds for reversal.
[Citations]. Similarly an appellant may waive his right to attack error by expressly or
impliedly agreeing at trial to the ruling or procedure objected to on appeal.’ ” (Mesecher
v. County of San Diego (1992) 9 Cal.App.4th 1677, 1685-1686; Evid. Code, § 353.) By
failing to timely object or to move to exclude the evidence of the four acts, and by
affirmatively adducing evidence of the four acts, defendants invited any error.
2. The litigation privilege does not immunize the four acts.
Even if the invited error doctrine did not apply, we conclude none of the four
specified acts is protected by the litigation privilege. At the close of defendants’ case, the
trial court refused defendants’ request to instruct the jury on the litigation privilege
finding there was no evidence, at the time the statements were made, that anyone
contemplated litigation or that attorneys were involved.
“The litigation privilege protects a ‘publication or broadcast . . . [¶] . . . [¶] (b) In
any . . . (2) judicial proceeding . . . .’ [Citation.] The privilege applies to ‘any
communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other
participants authorized by law; (3) to achieve the objects of the litigation; and (4) to have
some connection or logical relation to the action. [Citations.]’ [Citations.]” (Blanchard
v. DIRECTV, Inc. (2004) 123 Cal.App.4th 903, 919, citing Civ. Code, § 47, subd. (b).)
One longstanding requirement under Civil Code section 47, subdivision (b) is that
to fall within the privilege, communications must bear “some relation” to an anticipated
lawsuit. (Rubin v. Green (1993) 4 Cal.4th 1187, 1194.) That is, “a prelitigation
statement is protected by the litigation privilege of section 47, subdivision (b) when the
statement is made in connection with a proposed litigation that is ‘contemplated in good
faith and under serious consideration. [Citation.]’ [Citations.]” (Aronson v. Kinsella
18
(1997) 58 Cal.App.4th 254, 262, italics added.) “ ‘[T]he good faith, serious consideration
of litigation test is not . . . a test for malice and it is not a variation of the “interest of
justice” test.’ [Citation.] Rather, it is ‘addressed to the requirement the statements “have
some connection or logical relation to the action. [Citations.]’ [Citation.] Thus, if the
statement is made with a good faith belief in a legally viable claim and in serious
contemplation of litigation, then the statement is sufficiently connected to litigation and
will be protected by the litigation privilege. [Citation.] If it applies, the privilege is
absolute. [Citation.]” (Blanchard v. DIRECTV, Inc., supra, 123 Cal.App.4th at p. 919.)
Here, none of the four acts at issue is protected by the litigation privilege because
none was made in serious contemplation of litigation. The only testimony defendants
point to as evidence of contemplated litigation is (1) Ekizian’s statement, in response to
inquiry about the purpose of a meeting between the parties, “I went there to see what kind
of a solution we can find, and I told them that I am not a trial person or litigation. [¶] I
don’t want any kind of litigation;” and (2) Ekizian’s friend Ken Hounsell’s statement that
meetings were held “to work out whatever the problems were in such a way that this case
would not head for litigation . . . .” (Italics added.) These statements are not connected
to anticipated or proposed litigation. As defendants’ attorney acknowledged to the trial
court, these statements were made to avoid litigation. Therefore, defendants have not
demonstrated that the statements have a sufficient connection to litigation to cloak them
with the protection of Civil Code section 47, subdivision (b).
Another “issue in determining if the litigation privilege applies is whether the
alleged injury arises from a communicative act or noncommunicative conduct.
[Citation.] ‘The distinction between communicative and noncommunicative conduct
hinges on the gravamen of the action. [Citations.] That is, the key in determining
whether the privilege applies is whether the injury allegedly resulted from an act that was
communicative in its essential nature. [Citations.] The following acts have been deemed
communicative and thus protected by the litigation privilege: attorney prelitigation
solicitations of potential clients and subsequent filing of pleadings in the litigation
[citation], and testimonial use of the contents of illegally overheard conversation
19
[citation]. The following acts have been deemed noncommunicative and thus
unprivileged: prelitigation illegal recording of confidential telephone conversations
[citation]; eavesdropping on a telephone conversation [citation]; and physician’s
negligent examination of patient causing physical injury [citation].’ [Citation.]” (Action
Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1248.)
Two of the four relevant acts are Ekizian’s refusals to sign the covenant of
community driveway and the retaining wall permit. In addition to being unprotected
because not made in serious contemplation of litigation, such refusals to sign are not
protected because their essential nature is noncommunicative. (See Action Apartment
Assn., Inc. v. City of Santa Monica, supra, 41 Cal.4th at p. 1248.)
Defendants observe that the litigation privilege encompasses statements made in
connection with proceedings before administrative bodies and quasi-judicial proceedings,
as well as statements made to initiate official action. (Wise v. Thrifty Payless, Inc. (2000)
83 Cal.App.4th 1296, 1303 [statements defendant made to the Department of Motor
Vehicles about plaintiff’s fitness to drive are privileged in the context of the parties’
divorce].) “An absolute privilege exists to protect citizens from the threat of litigation for
communications to government agencies whose function it is to investigate and remedy
wrongdoing. [Citation.]” (Ibid.) However, the two communicative acts constituting the
basis for plaintiff’s lawsuit are statements defendants made to plaintiff and her agents,
not to any City agency or in any quasi-judicial proceeding. In short, because none of the
four claimed acts of interference is protected by the litigation privilege, and because
defendants invited any error, the trial court did not err in refusing to instruct the jury from
Civil Code section 47, subdivision (b).
C. The parties’ discussions were not an attempt to settle and so were not
protected by Evidence Code section 1152.
Next, defendants cite to plaintiff’s claim that Ekizian made what she felt were
extortionate demands for money before he would sign the covenant for community
driveway, and his insistence that plaintiff must buy her easement from defendants. These
statements, defendants argue, were inadmissible because they “came out of settlement
20
negotiations[, e]ither to resolve the city investigation or the contemplated litigation.” The
trial court ruled that these statements were “demands” and not offers to compromise
anything. The court found these demands did not constitute offers to compensate
plaintiff for damages she claimed to have suffered.
Statements made during settlement negotiations are inadmissible to show liability.
(Simandle v. Vista de Santa Barbara Associates, LP (2009) 178 Cal.App.4th 1317, 1323,
citing Evid. Code, § 1152, subd. (a).)4 “ ‘In considering whether a person’s statement
amounts to an ordinary admission or constitutes an offer of compromise, the intention of
the party is dispositive.’ [Citation.] If the statement was not intended as a concession but
as an assertion of ‘ “ ‘all that he deemed himself entitled to,’ ” ’ it is not an offer of
compromise. [Citation.]” (Volkswagen of America, Inc. v. Superior Court (2006) 139
Cal.App.4th 1481, 1494.) Thus, “a letter itemizing what the sender thinks the recipient
owes him or her and demanding payment, even under threat of legal action, is, in effect, a
bill and not an offer in settlement or a document in settlement negotiations excludable
under section 1152 and 1154.” (Zhou v. Unisource Worldwide (2007) 157 Cal.App.4th
1471, 1477, italics added.)
A fair reading of the testimony defendants cites shows that Ekizian’s refusal to
sign documents and his requests that plaintiff pay him were intransigent demands; not
concessions, or proposals to compensate plaintiff for her harm, and hence not offers in
compromise. The trial court did not abuse its discretion in allowing the jury to hear the
cited testimony.
4
Evidence Code section 1152, subdivision (a) reads, “Evidence that a person has, in
compromise or from humanitarian motives, furnished or offered or promised to furnish
money or any other thing, act, or service to another who has sustained or will sustain or
claims that he or she has sustained or will sustain loss or damage, as well as any conduct
or statements made in negotiation thereof, is inadmissible to prove his or her liability for
the loss or damage or any part of it.”
21
D. The trial court did not err in awarding plaintiff damages for a continuing
nuisance through the date the nuisance was abated.
Defendants contend that the trial court erred by “allowing proof of damages
through . . . trial,” where plaintiff’s theory was that defendants committed a “continuing
nuisance,” for which the only recoverable damages are those that were incurred before
she commenced her action.
Defendants have not cited us to any place in the record where they moved to
preclude admission of these damages; they do not cite to a motion in limine to exclude, or
an objection to, this evidence. It is defendants’ burden as appellants to point us to the
portions of the record demonstrating they preserved this issue for appeal. We will not
search the record on their behalf. (Guthrey v. State of California, supra, 63 Cal.App.4th
at p. 1115.) It is only in their motion for new trial that defendants belatedly raised the
issue of improper admission of evidence. Accordingly, defendants have forfeited the
issue. (See Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 726 [failure to object to
evidence admitted by the trial court forfeits on appeal the argument such evidence was
inadmissible because inter alia, the “[l]ack of such objection deprives the proponent of
the evidence an opportunity to establish a better record or some alternative basis for
admission.”].)
Despite the forfeiture, we nonetheless conclude the trial court did not err in
admitting the challenged evidence. “The owner of the easement whose rights have been
impeded can recover damages, which are measured in the same manner as are those for a
nuisance.” (6 Miller & Starr, Cal. Real Estate, supra, § 15:72, p. 15-238, fn. omitted.)
The measure of damages depends on whether the nuisance is permanent or continuing.
(8 Miller & Starr, Cal. Real Estate, supra, § 22:21, p. 22-89.) “The test of whether the
nuisance is permanent or continuing is whether the condition can be abated at any time
by reasonable and feasible means and at reasonable cost . . . .” (Ibid.) “[P]ermanent
nuisances are of a type where ‘ “by one act a permanent injury is done, [and] damages are
assessed once for all.” ’ [Citations.]” (Baker v. Burbank-Glendale-Pasadena Airport
Authority (1985) 39 Cal.3d 862, 868-869 (Baker).) By contrast, “[a] continuing nuisance
22
is one that is ongoing and repeated, varies over time, and can be discontinued.” (8 Miller
& Starr, supra, at p. 22-89.) Damages for a permanent nuisance are measured by the
diminution in value of the real property interest or the cost of repair. (Id., § 22:22,
pp. 22-91 to 22-92.) Both past and future damages may be awarded for a permanent
nuisance. (Id. at p. 22-92.) Damages recoverable for a continuing nuisance are limited to
the recovery of the costs of abatement and the loss of use value during the existence of
the nuisance and sometimes lost profits. (Id. at pp. 22-93 to 22-94.) Thus, “[r]ecovery in
a continuing nuisance case is always limited to accrued, as opposed to prospective,
damages, whereas in a permanent nuisance action both accrued and prospective damages
may be recovered.” (Renz v. 33rd Dist. Agricultural Assn. (1995) 39 Cal.App.4th 61, 67
(Renz).) Plaintiff’s theory was that defendants’ four acts of interference constituted a
“continuing nuisance.”
Defendants posit that plaintiff’s damages are therefore limited to the injury she
suffered up to the date she filed her complaint and so would not include damages for
defendants’ refusal to sign permission for the retaining wall permit, as plaintiff only
requested that permission after the trial court rendered its declaratory relief ruling. For
this, defendants rely on Baker, supra, 39 Cal.3d 862, that for a continuing nuisance
“persons harmed by it may bring successive actions for damages until the nuisance is
abated. [Citation.] Recovery is limited, however, to actual injury suffered prior to
commencement of each action. Prospective damages are unavailable.” (Id. at p. 869,
italics added.) Defendants argue that based on this Supreme Court precedent, the trial
court here erred in allowing the admission of evidence of plaintiff’s damages that were
incurred after September 2004, when plaintiff filed her complaint.
However, as explained in Renz, supra, 39 Cal.App.4th at pages 65 to 68, we are
not bound by the italicized sentence in Baker. The defendant in Renz had relied on Baker
to argue that the plaintiffs were only entitled to recover damages for the period before
commencement of their lawsuit. (Id. at p. 65.) Explaining that the only issue Baker
actually addressed was whether the action was barred by the statute of limitations, Renz
concluded that Baker’s statement about the accrual of damages was dicta and
23
unsupported by authority, with the result the appellate court was not bound by it. (Id. at
pp. 67-68.) Absent the Baker language, Renz explained that “it is clear that damages
incurred between the commencement and the conclusion of a continuing nuisance action
should be recoverable in that action because under Civil Code section 3283, “ ‘[d]amages
may be awarded, in a judicial proceeding, for detriment resulting after the
commencement thereof . . . .’ ” (Renz, at p. 68, italics added.) Finally, both the majority
and the concurrence in Renz reasoned that, in the case of a continuing nuisance where
damages are incurred between the commencement and completion of the action, under
Baker, plaintiffs would be forced to bring successive actions until the nuisance was
abated, requiring repetitive litigation. That result is “not in the interests of justice and
judicial economy.” (Renz, at pp. 68 & 69-70 (conc. opn. of Bamattre-Manoukian, J.).)
Here, the trial court properly if impliedly followed the Renz analysis to allow
plaintiff to recover the damages she incurred after she filed her lawsuit in September
2004 until the date of trial. The language in Baker purporting to limit damages to the
date of the complaint is dicta and unsupported by authority, whereas the holding in Renz
relying on Civil Code section 3283, that a plaintiff may recover damages incurred after
commencement of the action up to the cessation of a continuing nuisance (Renz, supra,
39 Cal.App.4th at p. 68) is squarely on point. As the trial court here noted, this lawsuit
was protracted, lasting six years; defendants could have at any time stopped the nuisance
by signing the covenant for community driveway, but they refused, thereby causing
plaintiff to suffer continuous harm starting before she filed her complaint. It is
unrealistic, a waste of judicial resources, and contrary to the interests of justice to require
plaintiff to file repeated and successive lawsuits for each instance of obstruction and after
each demand over the course of six years.
Defendants reply by observing that in Santa Fe Partnership v. Arco Products Co.
(1996) 46 Cal.App.4th 967, the Second District considered itself bound by the Baker
language that Renz called dicta. (Id. at p. 977-978.) However, the issue in Santa Fe
Partnership was whether a continuing nuisance plaintiff could recover damages for
diminution in value. (Id. at p. 973.) Division Seven of this District Court of Appeal cited
24
cases “holding California law does not allow future or prospective damages, including
diminution in value damages in a continuing nuisance case” (id. at p. 977) and “reject[ed]
appellants’ request to create new law to permit recovery of diminution in value damages
in a continuing nuisance case.” (Id. at p. 978.) Santa Fe Partnership never mentioned
Renz. In any event, here, the trial court effectively followed Santa Fe Partnership when
it stated, where this was not a future damages case, that the jury award to plaintiff of
$600,000 in diminution in value damages was unsupported, and reduced plaintiff’s award
by that amount. In sum, defendants failed to demonstrate trial court error.
IX. The trial court did not err in holding defendants jointly and severally liable
for plaintiff’s damages.
Citing Corporations Code section 17158, defendants contend that Ekizian cannot
be held personally liable for the judgment because all of the actions he undertook were as
manager of defendant Diramesi Investments, LLC. Defendants argue there was no
showing that Ekizian personally committed “anything fraudulent or criminal.”
Corporations Code section 17158, subdivision (a) reads, “No person who is a
manager or officer or both a manager and officer of a limited liability company shall be
personally liable under any judgment of a court, or in any other manner, for any debt,
obligation, or liability of the limited liability company, whether that liability or obligation
arises in contract, tort, or otherwise, solely by reason of being a manager or officer or
both a manager and officer of the limited liability company.” (Italics added.)
We held in People v. Pacific Landmark, LLC (2005) 129 Cal.App.4th 1203(Pacific Landmark) that Corporations Code section 17158 does not insulate managers of
limited liability companies from personal liability if they participated in the tortious or
criminal conduct while performing duties as managers. We affirmed the trial court’s
judgment holding the property manager personally liable for failing to abate the nuisance
created by the limited liability corporation while he was manager. We reasoned “whereas
managers of limited liability companies may not be held liable for the wrongful conduct
of the companies merely because of the managers’ status, they may nonetheless be held
accountable under Corporations Code section 17158, subdivision (a) for their personal
25
participation in tortious or criminal conduct, even when performing their duties as
manager.” (Pacific Landmark, supra, 129 Cal.App.4th at p. 1213, italics added.)
Here, the record shows that the judgment was not imposed on Ekizian personally
solely because of his status as owner of Diramesi Investments, LLC. Instead, the
evidence showed that Ekizian was personally involved in the acts of interference. The
record shows that Ekizian refused to sign the covenant for community driveway; and
Ekizian refused to sign permission for the retaining wall permit. Defendants’ summary
contention that there is no showing Ekizian did anything tortious is simply not supported
by the record.]]
[[End nonpublished portion]]
26
DISPOSITION
The judgment is affirmed. Plaintiff is to recover costs on appeal.
CERTIFIED FOR PARTIAL PUBLICATION
ALDRICH, J.
We concur:
CROSKEY, Acting P. J.
KITCHING, J.
27
28