MacWhirter v. Sherwood Development Co. CA2/6

Filed 3/24/21 MacWhirter v. Sherwood Development Co. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
MARK MACWHIRTER ET AL., 2d Civ. No. B298615
(Super. Ct. No. 56-2019-
Plaintiffs and Respondents, 00525214-CU-OR-VTA)
(Ventura County)
v.
SHERWOOD DEVELOPMENT
COMPANY, L.P., ET AL.
Defendants and Appellants.
Respondents parked along the private road in front of their
houses for decades. When respondents ignored requests to stop
the practice, appellants hired crews and dump trucks to place
hundreds of boulders along the road’s edge. Respondents sued to
establish prescriptive easements and sought a preliminary
injunction restoring their parking rights. The court issued the
preliminary injunction and ordered appellants to restore the
status quo by moving enough of the boulders to provide each
household with three parking spaces pending trial.
Appellants appeal the preliminary injunction. They
contend the court abused its discretion by granting respondents’
request despite a lack of evidence supporting their claims. They
also contend the claims are barred because lake access rights
were litigated and resolved long ago by the parties’ predecessors
in interest. We affirm.
FACTS AND PROCEDURAL BACKGROUND
Respondents own eight waterfront houses in Lake
Sherwood, an unincorporated community in Ventura County
surrounding a man-made eponymous lake. Their houses sit on
Lower Lake Road along the southern shore. Sherwood
Development Company, L.P., formerly LSR Limited Partnership
(SDC), owns the lake and a narrow piece of land called the
“reserve strip” that encircles it. Respondents must cross the road
and reserve strip to reach the shore.
Sherwood Valley Homeowners Association (Association)
manages the lake and reserve strip on SDC’s behalf. The
Association sent a letter to residents in July of 2018 concerning
unauthorized parking on the reserve strip along Lower Lake
Road. When the practice did not stop, the Association hired
crews and dump trucks to place hundreds of locally sourced
boulders along the road’s edge on the morning of January 28,
2019. This prevented parking on the shoulder or accessing the
reserve strip by any means except foot or bicycle.
Respondents sued to quiet title and to enjoin SDC and the
Association (collectively Appellants) from obstructing their access
to the reserve strip. They also claimed prescriptive easements
rights over areas traditionally used for parking. The Association
denied any prescriptive easements existed and accused
respondents of violating the same judgments they sought to
enforce.
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The trial court issued a mandatory preliminary injunction
ordering the Association and SDC to remove those boulders
placed in respondents’ alleged parking areas. The injunction
provided for three spaces for each of the eight houses involved in
the action. The court also ordered the Association and SDC to
cover up five recently installed “no parking” signs and to refrain
from obstructing the parking areas pending trial.
The Association and SDC appealed the preliminary
injunction. (Code Civ. Proc., § 904.1, subd. (a)(6).) The case is
scheduled for trial in November of 2021.1
DISCUSSION
Standard of Review
“‘In determining whether to issue a preliminary injunction,
the trial court considers two related factors: (1) the likelihood
that the plaintiff will prevail on the merits of its case at trial, and
(2) the interim harm that the plaintiff is likely to sustain if the
injunction is denied as compared to the harm that the defendant
is likely to suffer if the court grants a preliminary injunction.
[Citation.]’” (Donahue Schriber Realty Group, Inc. v. Nu Creation
Outreach (2014) 232 Cal.App.4th 1171, 1177; see Code Civ. Proc.,
§ 526, subd. (a).) We reverse an order granting or denying the
request only if the trial court abused its discretion as to both
factors. (Cohen v. Board of Supervisors (1985) 40 Cal.3d 277,
286-287.) We review questions of law de novo. (Donahue
Schriber Realty Group, Inc. at p. 1176.)
1Respondents sought writ review of the trial court’s
subsequent decision to stay proceedings pending resolution of
this appeal. (See Case No. B300380.) We denied the petition in
our order dated October 8, 2019.
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The Trial Court Properly Exercised Its Discretion When
Considering the Parties’ Disputed Evidence
SDC contends the trial court abused its discretion by
issuing a preliminary injunction without adequate evidence of
respondents’ right to prescriptive parking easements on the
reserve strip. (See Hagen v. Beth (1897) 118 Cal. 330, 331 [“The
granting of a mandatory injunction pending trial . . . is not
permitted except in extreme cases where the right thereto is
clearly established and it appears that irreparable injury will
flow from its refusal”].) SDC states the trial court would have
denied injunctive relief had it performed an individualized
factual analysis of respondents’ claims. We conclude no abuse of
discretion occurred.
The two-part preliminary injunction test requires the trial
court to assess a case’s merits while also contemplating the
possible effects of a provisional ruling. (See White v. Davis (2003)
30 Cal.4th 528, 554, quoting IT Corp. v. County of Imperial (1983)
35 Cal.3d 63, 73, italics omitted [“‘The ultimate goal of any test to
be used in deciding whether a preliminary injunction should
issue is to minimize the harm which an erroneous interim
decision may cause’”].) Here, the parties presented the court with
a significant amount of evidence at the outset of the case.
Declarations from ten individuals described events occurring over
the span of several decades. Deeds and conveyance filings for
eight houses, four judgments from the 1960s and 1970s, several
letters, and over two hundred photographs are attached to these
declarations. Each respondent proffered evidence supporting
their causes of action and describing harm allegedly caused by
SDC’s anti-parking measures. Likewise, SDC introduced
conflicting evidence on each point and interjected myriad
objections.
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We decline to weigh the relative strength of disputed
evidence on appeal. (See Citizens to Save California v. California
Fair Political Practices Com. (2006) 145 Cal.App.4th 736, 746
[“[E]xcept in a clear case we should not anticipate the final
judgment of the trial court by disposition of an appeal from the
order granting the preliminary injunction”].) Factual questions
created by conflicting evidence, such as whether SDC’s boulders
endanger pedestrians to a degree constituting “great” injury, are
the trial court’s province. (See Bennett v. Lew (1984) 151
Cal.App.3d 1177, 1184, quoting Monogram Industries, Inc. v. Sar
Industries (1976) 64 Cal.App.3d 692, 704 [“‘[The] trial court is the
judge of the credibility of the affidavits filed in support of the
application for preliminary injunction and it is that court’s
province to resolve conflicts’”].)
We note the trial court held a hearing to discuss the
injunction after the parties could not stipulate to its terms. The
lack of a reporter’s transcript leaves us to speculate about what
happened. (See, e.g., Sui v. Landi (1985) 163 Cal.App.3d 383,
385-386 [affirming an order denying preliminary injunction
dissolution based on lack of reporter’s transcript].) However,
handwritten interlineations on the injunction show the court
sought to address SDC’s concerns about compliance deadlines
and potential quagga mussel infestation. It limited parking to
eight small quadrangles on the reserve strip and ordered SDC to
remove only the boulders placed in those areas. The court
allowed the “no parking” signs to remain if SDC covered them
temporarily. The injunction appears to be the product of a
deliberate and collaborative balancing process intended to
maintain the status quo while leaving the lion’s share of SDC’s
anti-parking measures intact.
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The Trial Court Did Not Abuse its Discretion By Not Considering
the Historical Judgments’ Injunction Clauses
Litigation over lake access in the 1960s and 1970s resulted
in four judgments relating to the rights of residents to access and
use Lake Sherwood. These judgments granted certain easement
and property rights to the owners of waterfront lots, including
the right to maintain a private boat dock, to moor watercraft, and
to traverse the reserve strip for the purpose of using the lake.
Each respondent asserts lake access rights under one of these
historical judgments.2
Three of the four historical judgments contain clauses
similar or identical to the following: “[E]ach and all of the
plaintiffs and cross-defendants . . . shall be, and they are hereby,
forever restrained and enjoined from asserting any right, title
and interest or lien in and to said real property, adverse to that of
Dayton Realty Co. or its successors in interest, except as
specifically set forth in said paragraphs.”3 SDC contends these
clauses prohibit most of the respondents from asserting
additional easement rights, and should have weighed heavily on
the trial court’s analysis of respondent’s likelihood of prevailing
2The record contains judgments in the following actions:
(1) Canterbury v. Hill (Case No. 45461), recorded January 9, 1961
(MacWhirter property); (2) Bruder v. Dayton Realty Co. (Case No.
48018), recorded September 26, 1969 (Hilliard, River Range,
Singh, and Tyoran properties); (3) Dayton Realty Co. v. Landon
(Case No. 54492), recorded May 4, 1973 (Capri property); and (4)
Dayton Realty Co. v. Fineberg (Case No. 54116), recorded March
28, 1974 (Hibma property).
3 Dayton Realty Co. is SDC’s predecessor in interest.
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on the merits.4 (See Citizens to Save California v. California Fair
Political Practices Com., supra, 145 Cal.App.4th at pp. 745-746,
quoting Hunter v. City of Whittier (1989) 209 Cal.App.3d 588,
595-596 [“Occasionally . . . the likelihood of prevailing on the
merits depends upon a question of pure law rather than upon
evidence to be introduced at a subsequent full trial. . . . If such a
question of pure law is presented, it can sometimes be
determinative over the other factor”].) Respondents insist the
historical judgments do not apply, and contend SDC waived the
issue on appeal by failing to raise the argument below. (See
Findleton v. Coyote Valley Band of Pomo Indians (2018) 27
Cal.App.5th 565, 569, citing Eisenberg et al., Cal. Practice Guide:
Civil Appeals and Writs (The Rutter Group 2017) ¶ 8:233, p. 8-
175 [theory of trial doctrine “applies to defenses as well as
theories of liability”].)
The “forever restrained and enjoined” language cited by
SDC is commonly found in quiet title judgments. (See Goldstein
v. Prien (1956) 143 Cal.App.2d 123, 129 [“The action was of the
character of a quiet title action and an injunction from setting up
a claim against such title is generally part of the relief
afforded”].) Our high court has affirmed similar injunction
clauses. (See, e.g., Lake v. Superior Court (1913) 165 Cal. 182,
191 [“Upon the face of the judgment, moreover, no question can
arise as to its intended scope. It is broad enough, and designedly
broad enough, to prohibit these petitioners, their successors and
privies, from ever again . . . asserting or claiming any right to or
interest in the real property affected by that judgment”].) But
4 The judgments in Bruder, Landon, and Fineberg contain
such language. The default judgment recorded in Canterbury v.
Hill, relating to the property owned by MacWhirter respondents,
does not.
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respondents correctly observe SDC did not invoke these clauses
prior to appealing. SDC referred below to respondents
“breaching” the judgments by using the reserve strip for parking
but did not characterize this action as violating the judgments’
injunctions or as constituting contempt. In addition, the absence
of SDC’s responsive pleadings in the record leaves us unable to
confirm which affirmative defenses it raised to respondents’
complaint. We conclude respondents waived the right to assert
this theory on the instant appeal but stop short of finding
wholesale waiver at this early stage of the case. We leave the
trial court to decide on remand how to best adjudicate issues
relating to the historical judgments.
The Trial Court Did Not Abuse Its Discretion By Issuing
a Preliminary Injunction in the Absence of Allegedly
Indispensable Parties
SDC contends the court also abused its discretion by
issuing a preliminary injunction without participation from the
100+ homeowners granted lake access easements under the
historical judgments. SDC characterizes these parties as
indispensable because the preliminary injunction affects their
express right to recreate in areas now dedicated to parking.
Again, we do not agree.
Compulsory joinder is limited “to those situations where
the absence of a person may result in substantial prejudice to
that person or to the parties already before the court.” (Cal. Law
Revision Com. com., Deering’s Ann. Code Civ. Proc., foll. § 389.)
The record does not show the non-named parties suffered
prejudice when the court issued the preliminary injunction in
their absence. They may still move to intervene if they find their
access to the lake and reserve strip impinged. (Code Civ. Proc.,
§ 387.) The injunction imposes no obligation on them. While
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some may wish to participate in the action, as SDC insists, some
may not welcome process servers, first appearance fees, and the
inevitable attorney invoices. The court did not abuse its
discretion by not forcing them to the table. (See County of San
Joaquin v. State Water Resources Control Bd. (1997) 54
Cal.App.4th 1144, 1151, quoting Serrano v. Priest (1976) 18
Cal.3d 728, 753, italics omitted [“‘in dealing with the doctrine of
indispensable . . . parties “we should . . . be careful to avoid
converting a discretionary power or a rule of fairness in
procedure into an arbitrary and burdensome requirement which
may thwart rather than accomplish justice”’”].)
SDC also asserts these parties must be included in any
quiet title judgment that results from this case. (See Ranch at
the Falls LLC v. O’Neal (2019) 38 Cal.App.5th 155, 173, citing
Washington Mutual Bank v. Blechman (2007) 157 Cal.App.4th
662, 667.) The assertion is premature. This appeal concerns an
interlocutory ruling. Preliminary injunctions are by their nature
a provisional remedy intended to preserve the status quo pending
the court’s final determination of an action’s merits. (Continental
Baking Co. v. Katz (1968) 68 Cal.2d 512, 528; DVD Copy Control
Assn., Inc. v. Bunner (2004) 116 Cal.App.4th 241, 249; see People
ex rel. Bender v. Wind River Mining Project (1990) 219
Cal.App.3d 1390, 1395, citing People v. Black’s Food Store (1940)
16 Cal.2d 59, 61-62 [trial court’s findings at preliminary
injunction stage have no preclusive effect at trial].)
In addition, the absence of adverse parties does not deprive
the court of jurisdiction to adjudicate disputes between those
already before the court. It “merely results in a judgment that
does not bind those unnamed parties.” (Seror v. Stone (In re
Automated Fin. Corp.), 2011 Bankr. LEXIS 291, *11; Code Civ.
Proc., § 764.045; see Washington Mutual Bank v. Blechman,
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supra, 157 Cal.App.4th 662 [default judgment subject to
collateral attack by nonjoined indispensable party]; Thomson v.
Talbert Drainage Dist. (1959) 168 Cal.App.2d 687 [trial court
properly vacated permanent injunction entered in the absence of
nonjoined lessee who lost rights to dispose of wastewater into
defendant’s drainage system].)
SDC may still move to join additional parties it believes
indispensable. If the trial court denies joinder, SDC may seek
review of the ruling on appeal of the final judgment. (See Ranch
at the Falls LLC v. O’Neal, supra, 38 Cal.App.5th 155 [quiet title
judgment reversed because trial court did not join homeowners
who held fee interest in private road subject to easement claims].)
SDC may also move to modify the injunction as the case develops.
(Code Civ. Proc., § 533.) The trial court, however, need not have
remained idle for months while respondents identified, named,
and served process on more than 100 additional parties.
CONCLUSION
The judgment is affirmed. Respondents shall recover their
costs on appeal.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
YEGAN, Acting P. J. TANGEMAN, J.
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Henry J. Walsh, Judge
Superior Court County of Ventura
______________________________
Sheppard, Mullin, Richter & Hampton, Theona Zhordania
and Matthew G. Halgren for Defendant and Appellant Sherwood
Development Company, L.P.
SwedelsonGottlieb, David Swedelson and Joan E. Lewis-
Heard, for Defendant and Appellant Sherwood Valley
Homeowners Association.
The Law Office of Daniel Friedlander, Daniel A.
Friedlander, for Plaintiffs and Respondents.
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