Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Mariposa County No. 8604, Wayne R. Parish, Judge.
Michael J. Conklin for Plaintiffs and Appellants.
Law Offices of Mayol & Barringer and Bart Barringer for Defendant and Respondent.
OPINION
VARTABEDIAN, Acting P. J.
This is an appeal from summary judgment granted in favor of defendant and respondent, Harry Alfier. Plaintiffs and appellants, James B. Dean and Marion Ferri Dean, contend the trial court made errors of fact and law in determining there was no merit to various causes of action concerning an easement that runs across appellants’ property. We affirm the judgment.
Facts and Procedural History
Lake Don Pedro Subdivision was mapped in 1969 and mapped roads were built. The subdivision is comprised of large rural lots.
After the main roads were graded, the County of Mariposa and the subdivision’s developer determined that, as to four lots fronting to the east onto Alamo Drive (lots 1149-1152), the grade between the road and the lots was too steep to build driveways that conformed with various building standards. As a result, the developer, who then owned all the relevant lots, reserved an easement for ingress and egress across lots 1149-1152, and an easement for ingress and egress across lots 1177 and 1178, which lay to the west of lots 1149-1152. The easement continued across the west side of lots 1149-1152, so that all of the lots, together with lot 1153, had access to the junction point at the eastern edge of lot 1178. Sometime in the early 1970’s, a dirt road was graded along the easement. There remained no access to lots 1149-1153 directly from Alamo Drive.
Lake Don Pedro Subdivision also featured extensive hiking and equestrian trails. These were established by nonexclusive easements across many of the lots in the subdivision. One such “P/E” (pedestrian and equestrian) easement runs along the west side of lots 1149-1152. At certain points on lot 1149 the P/E easement is in the same location as the ingress-egress easement.
In 2000, appellants bought lot 1178 and built a house on that lot. At that time, they did not know about the ingress-egress easement because, even though it was duly recorded, the easement did not appear in the title report obtained by appellants. (The easement runs through the middle of lot 1177 from southwest to northeast. It only enters lot 1178 less than 75 feet from the eastern border of that lot, where it continues to the northeast across the southeastern tip of lot 1178.) A few months later, Deerwood Corporation, respondent’s codefendant in the court below, bought lots 1150 and 1151. In early 2002, Deerwood bought lot 1152; it also owns lot 1153.
In preparation for development of lots 1150-1153, Deerwood planned to pave the ingress and egress easement. In March of 2002, it caused the portion of the easement across lots 1177 and 1178 to be staked out with survey flags, and its agent informed appellants it intended to grade and pave a road in the easement. Two months later, appellants bought lot 1177. They said their title insurance company had determined (erroneously, it turns out) that the easement had been extinguished by merger under a prior owner of the affected lots. In July of 2002, respondent purchased lot 1149.
A year later, in May of 2003, Deerwood’s paving contractor unloaded equipment to begin grading the roadway for paving. The contractor accomplished its work over the next two weeks, despite appellants’ efforts to enlist the support of County of Mariposa officials to stop the project. Appellants installed a gate across the completed roadway and attempted to lock out respondent and Deerwood. After a series of locks were installed and removed, appellants filed this action in May of 2004, naming as defendants respondent, Deerwood, and the paving contractor. Shortly thereafter, appellants filed suit against the County of Mariposa seeking, inter alia, to require the county to declare the roadway a nuisance. The cases were consolidated in the trial court.
Subsequently, the trial court sustained the County of Mariposa’s demurrer, denied leave to amend the complaint, and dismissed appellants’ action against the county. Appellants appealed and we affirmed the judgment in an unpublished opinion in Dean v. County of Mariposa, No. F048337, filed August 23, 2006 (hereafter No. F048337). The Supreme Court denied appellants’ petition for review.
While the appeal in No. F048337 was pending, Deerwood filed a motion for summary judgment. The court granted the summary judgment motion. Judgment for Deerwood and against appellants on all causes of action was filed on August 22, 2007. Appellants filed a timely notice of appeal. That appeal, Dean v. Deerwood Corporation, was designated case No. F054026 (hereafter No. F054026).
After summary judgment was granted to all other defendants, respondent filed a motion for summary judgment. That motion was granted, judgment was entered, and appellants filed a timely notice of appeal. Appellants filed a motion to consolidate the appeals. This court denied the motion, while permitting appellants to incorporate arguments and the record by reference through a motion for judicial notice. Appellants did so, and we now grant the motion for judicial notice. The matters were calendared for hearing on the same date and, contemporaneous with the filing of this opinion, we are filing an opinion in No. F054026.
Discussion
I. Introduction
Our opinion in No. F048337 was not a published opinion and has no general efficacy as precedent. (Cal. Rules of Court, rule 8.1115(a).) To the extent the opinion reflects the law of the case or constitutes a basis for collateral estoppel, however, we and the parties may refer to the opinion. (Cal. Rules of Court, rule 8.1115(b)(1).) Whether as law of the case or by application of collateral estoppel, a ruling adverse to a party in the prior appeal precludes relitigation of the issue by that party unless we are presented with significantly different facts on the present appeal. (Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 57.)
The appellants in the prior appeal are the appellants in this appeal. The prior appeal was from judgment after the court sustained a demurrer. “‘[Q]uestions presented and decided by [an] appellate court upon appeal from a judgment on demurrer become the law of the case, and are not open to question on a subsequent appeal’ unless the evidence ‘“is substantially different in a material respect.”’ [Citations and fn. omitted.] [¶] However, this rule applies only to those parties who appealed and whose rights were affected by that prior appeal.” (Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d at p. 57.)
The facts presented in the prior appeal were essentially the facts properly pled in appellants’ original complaint. Although appellants filed an amended complaint, they did not significantly change the facts pled. In addition, on this appeal we are presented with the evidence before the court on the summary judgment motion which, overwhelmingly, was adverse to appellants.
As a result, it is more than slightly perplexing that appellants have simply presented in this appeal the same arguments and authorities presented in the prior appeal, with no attempt whatsoever to address this court’s rationale and conclusions rejecting appellants’ arguments in the prior appeal. It is not sufficient for appellant to dismiss the prior opinion on the basis that it arose in a “different case”: the cases below were consolidated; the caption in No. F048337 included the superior court case number of the present case (Super. Ct. No. 8604); and, in any case, identity of the cases is not necessary for the doctrine of collateral estoppel to apply if the party against whom the doctrine applies was a party in the prior action and had a full and fair opportunity to litigate the issues decided. (See Rodgers v. Sargent Controls & Aerospace (2006) 136 Cal.App.4th 82, 90.)
Having fully discussed and rejected in the prior opinion many of the individual points appellants now raise, we will not expend further resources discussing the issues again. We will simply reference the prior opinion where appropriate to the resolution of an issue.
We further will note that briefs filed by appellants’ counsel repeatedly state propositions of law supported by citations to cases that do not stand for the proposition. For example, counsel cites this court’s opinion in Gisler v. County of Madera (1974) 38 Cal.App.3d 303, 307, footnote 3, for the proposition that a case can only operate as collateral estoppel if all of the parties in both cases are identical. In fact, Gisler held that one who was not a party to a prior appeal is not estopped by the opinion in that appeal. However, Gisler expressly stated that one who was a party to the appeal is bound by collateral estoppel. In the present case, of course, counsel’s clients were parties in No. F048377. Although no purpose would be served by discussing every misrepresentation of the holding of a case in appellants’ briefs, we will discuss two other cases below, in some detail and we will refer counsel to Business and Professions Code section 6068, subdivision (d) (an attorney must “never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law”).
II. Standard of Review
“Because plaintiff appeals from an order granting defendants summary judgment, we must independently examine the record to determine whether triable issues of material fact exist.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) “In performing our de novo review, we must view the evidence in a light favorable to plaintiff[s] as the losing party [citation], liberally construing [their] evidentiary submission while strictly scrutinizing defendant[’s] own showing, and resolving any evidentiary doubts or ambiguities in plaintiff[s’] favor.” (Id. at p. 768.)
III. Breach of Recorded Restrictions
Appellants contend that both the original dirt road and the paved road, as well as the easement over which they run, violate the recorded restrictions on use of subdivision property. The parties agree, and the trial court concluded, that valid mutually beneficial restrictions were recorded at or near the time the subdivision map was recorded. One provision of the restrictions is crucial to appellants’ argument. Paragraph 4 of the restrictions states, in relevant part: “No lot shall be used except for residential purposes. No structures shall be erected, placed or permitted to remain on any lot other than one (1) detached, single-family residence dwelling and such outbuildings as are usually accessory to a single-family residence dwelling, including a private garage .…” This restriction, recorded before the ingress and egress easement, could not be superseded by the easement, as the parties agree and the trial court concluded.
Appellants assert that single-family-use restrictions are enforceable. Then, without any reasoned discussion, appellants conclude the easement across their lots violates that restriction because “lot use for vehicular access to other lots” was held to violate a single-family-use restriction in Lincoln Sav. and Loan Assn. v. Riviera Estates Assn. (1970) 7 Cal.App.3d 449, 460-464 (Lincoln). Because neither the parties nor this court has found any other California cases dealing with the issue of a driveway as a “residential use,” we set forth the Lincoln case in some detail.
In appellants’ reply brief, there is the following passage: “Further, the facts of Russell v. Palos Verdes Properties (1963) 218 Cal.App.2d 754, 766-767 are directly on point to the within matter, and the Russell Court ruled the single family residential use restriction prevented use of two lots for access road purposes.”
In Lincoln, Durney owned contiguous property that was partially within and partially without a subdivision; the subdivision was subject to recorded restrictions. In an attempt to create three legal building sites in preparation for sale of the property, Durney filed a document, approved by the city department of building and safety, which created three lots, designated as lots 2, 3, and 4. Lot 4 was wholly within the gated subdivision and fronted onto Amalfi Drive, a private road in the subdivision. It comprised the entire frontage of Durney’s property on Amalfi Drive except for 30 feet. A strip 30 feet wide ran along the edge of lot 4 and connected Amalfi Drive with lots 2 and 3. The 30-foot strip was entirely within the subdivision. Lots 2 and 3 were wholly outside the subdivision and did not adjoin any other existing road; development of an access road could be accomplished only at great expense. However, included in the legal description of each lot was 15 feet of the strip connecting it to Amalfi Drive. In the document, Durney designated lot 2 as 1517 Amalfi Drive, lot 3 as 1519 Amalfi Drive, and lot 4 as 1521 Amalfi Drive. (Lincoln, supra, 7 Cal.App.3d at p. 455.)
The subdivision was subject to recorded restrictions that included these requirements: “No more than one dwelling-house shall be built upon any one building site .… A building site shall be either a lot as shown on [the subdivision] map,” or a portion of one or more lots with a frontage of not less than 100 feet on a subdivision street. (Lincoln, supra, 7 Cal.App.3d at p. 454.) A dwelling-house was defined as a building (with certain design restrictions) “intended for occupation by not more than one family.” (Id. at p. 453.)
When Coleman bought these lots from Durney, the neighborhood association sued for a declaration that the driveway strip violated the subdivision restrictions. The association prevailed and Coleman thereafter defaulted on loans secured by lots 2 and 3.
Lincoln Savings and Loan bought the properties at a trustee’s sale and sued for a declaration that, among other claims, use of the strip within the subdivision for a driveway to lots 2 and 3 outside the subdivision constituted a residential use permitted by the subdivision restrictions. (Lincoln, supra, 7 Cal.App.3d at p. 459.) The appellate court rejected this argument, cautioning, however, that “reliance upon the nonresidential use restriction alone might leave the result of the case in doubt.” (Id. at p. 462.) The court then held that the proposed use violated the clear intent of the 100-foot frontage restriction (to limit lots to a certain minimum size) and that permitting use of the driveway would “drastically alter” the subdivision. (Id. at p. 463.) The court permitted enforcement of the restrictions and stated that the intent of the parties set forth in the restrictions “was to prevent the very type of activity which plaintiff seeks to accomplish.” (Ibid.)
For two reasons, Lincoln does not support appellants’ position on appeal. First, the easement in this case does not attempt to establish a freestanding fee interest that, by its terms, violates other restrictions, such as lot size; in Lincoln, the property owner attempted just such a result. (See Lincoln, supra, 7 Cal.App.3d at p. 455.) This is a significant difference: Lincoln did not hold that a driveway is not a residential use; at most it held that a driveway that served a lot not subject to subdivision restrictions and did not serve any residence within the subdivision was not a permitted residential use.
Second, the easement in this case was created by the same entity that recorded the restrictions and was necessary to make lots within the subdivision marketable; the easement was not, as in Lincoln, a ploy by a subsequent buyer to bestow the benefits and prestige of the subdivision on lots that were not subject to the burdens of upkeep of the subdivision. (See Lincoln, supra, 7 Cal.App.3d at p. 463.) As noted by the Lincoln court, “the primary object in construing restrictive covenants, as in construing all contracts, should be to effectuate the legitimate desires of the covenanting parties.” (Ibid., internal quotation marks omitted.) In this case, unlike in Lincoln, the clear intent of the easement in question was to make the dominant lots saleable as part of the plan for the residential subdivision governed by the restrictions.
Uncontradicted evidence shows that numerous other access easements exist and have been paved within the Lake Don Pedro Subdivision.
The restriction in the present case by its own terms contemplates “structures” that “are usually accessory to a single-family residence dwelling, including a private garage.” While respondent might argue that a driveway is not a “structure,” it would not be reasonable for appellants to contend that a driveway is not a “usual accessory” for a house that has a garage. Accordingly, we reach the obvious conclusion that driveways, in general, are permitted uses under the terms of the present single-family residence restriction. Under the circumstances of the present case, we conclude that a driveway is a permitted use even if it runs across a different lot than it ultimately serves.
As a result of the foregoing conclusions, we reject appellants’ fundamental premise that the easement in question violated the terms of the recorded restrictions, and their secondary premise that such violation required respondent to prove that the restrictions were unreasonable in order to validate the easement.
IV. Conflict with Pedestrian and Equestrian Use Easement
Appellants contend the ingress and egress easement, where it passes over respondent’s land, conflicts with the P/E easement that runs along the western edge of that lot. Appellants contend they have standing to enforce the P/E easement under the public trust doctrine, citing County of Solano v. Handlery (2007) 155 Cal.App.4th 566, 573-581.
In our opinion in No. F048337, we discussed at length the claim that the two easements conflicted. We concluded the driveway did not obstruct or conflict with the nonexclusive P/E easement, even though the two easements physically overlapped in some places. Appellants have not asserted any different facts or law that might justify changing that conclusion. We hold that appellants’ claim is foreclosed by collateral estoppel.
Appellants also assert once again that use of the P/E easement for vehicular traffic violates Mariposa County Code chapter 12.24. We discussed this issue thoroughly in the opinion in No. 48337; we expressly ruled against appellants; there is no allegation here that different facts or law have arisen since then. Appellants’ claim is barred by collateral estoppel.
V. “Construction of the Paved Road”
Appellants contend: “Land Use Is Subject to Existing and Subsequent Zoning.” Appellants then list all of the zoning and land use regulations they have cited in this case. They do not, however, show how those regulations apply to the present case. For example, appellants say that section 11.1(B) of the Mariposa County Road Improvement Standards makes the road construction standards applicable to “driveways,” and then appellants proceed to discuss all the ways the present driveway does not conform to those standards. Appellants do not discuss, however, the fact that section 11.1(B) only brings road construction standards to bear on driveways when they constitute “shoulder improvements” encroaching on the public right of way. (In this case, Deerwood did obtain a permit for the portion of the driveway that encroached on the public road. That permit was adequate, as we discussed in our opinion in No. F048337.)
Respondent contended below and in this court that the easement road had been graded as a dirt driveway long before any of the existing road construction standards came into existence, and that each such standard (even if arguably applicable to private driveways) contained an exemption for roads that existed at the time the standard was adopted. The trial court found this to be true based on uncontradicted evidence. We agree: Appellants have failed to demonstrate that any of the standards they cite are applicable to roads existing before 1975, and they have not presented evidence that established as a triable issue of fact any claim that the road did not exist before 1975.
VI. The Fire Safety Road Standards
The California Department of Forestry has established extensive standards for construction of “fire safety access roads” in designated areas of the state. When a new road is built, certain width and grade standards are required in order to provide access for firefighting equipment. (See Cal. Code Regs, tit. 14, § 1273.00 et seq.) Appellants contend that the paved road was required to conform to these regulations, that the failure of the road to do so constitutes it as a nuisance, and that (because of the topography) the road cannot be made to conform, which leads appellants to the conclusion that the easement must therefore be extinguished.
Appellants impliedly acknowledge that the fire safety access regulations do not apply to roads and driveways that existed at the time the regulations were adopted in 1991. (See Cal. Code Regs., tit. 14, § 1270.02.) They argue, however, that because the paved road was wider than the dirt road and because the paved road extended into lot 1153 (while the dirt road ended at lot 1152), “the paved roadway was within the purview and jurisdiction of the [fire safety access] road construction standards regardless of the time and date of the construction of the so-called ‘dirt road.’”
Appellants cite no authority and present no reasoned argument in support of the proposition that the paved road was a “new” road because it was better than the dirt one. No regulation or enforcement history is presented to support such an interpretation of the regulations by the California Department of Forestry or by the County of Mariposa. (The declaration of appellant James B. Dean says that he inspected many of the paved private roads in Lake Don Pedro Subdivision and found none of them to be as wide as required by the fire safety standards.) In ordinary parlance, improvement of an existing road does not make it a new road. Because appellants have presented nothing that would lead us to conclude the regulations seek a departure from this ordinary meaning of the words, we reject appellants’ contention that the regulations were applicable to the paving of the road. As a result, we also reject appellants’ claim that summary judgment in this case constituted a prohibited ad hoc zoning exemption (see Neighbors in Support of Appropriate Land Use v. County of Tuolumne (2007) 157 Cal.App.4th 997, 1009-1010): the Department of Forestry regulations were never applicable to this road and no exemption was necessary in order to forego application of those regulations.
VII. The Common Law Claims
Appellants also stated claims for common law trespass, nuisance, quiet title and conversion. As to the trespass, nuisance, and quiet title causes of action, each is based on the theory that respondent’s easement has been or should be extinguished and that the road is illegal or fails to meet regulatory requirements. We have previously held that none of appellants’ theories in this regard is valid. Accordingly, the derivative causes of action based on those theories must fail as well. (Appellants do not renew their arguments with respect to these separate causes of action in their reply brief.)
Appellants’ conversion claim is based on allegations that respondent used cut material from grading done on appellants’ land as fill in constructing the paved road as it continues across respondent’s lots. Appellants have not cited to any factual showing that would tend to support their contention. Appellants agree it is undisputed that Deerwood’s contractor brought in gravel aggregate to create the roadbed and then paved over the aggregate. Appellants’ expert report states that the road over appellants’ lots was “generally constructed on top of native soils.” No evidence establishes or even suggests respondent took soil from appellants’ lots to create the road on his lot; consequently, summary judgment on the conversion claim was proper.
DISPOSITION
The judgment is affirmed. Respondent is awarded costs on appeal.
WE CONCUR: WISEMAN, J., DAWSON, J.
Nothing could be further from correct. In Russell, an eight-acre parcel in a gated subdivision was sold as a single, single-family building lot. Conveyed with Parcel 1 were Parcels 2 and 3. Parcels 2 and 3 were nonexclusive easements over the private roads that provided access from the subdivision gate to Parcel 1, presumably in conjunction with similar nonexclusive easements appurtenant to other lots within the subdivision. The subdivision restrictions required neighborhood association permission before any parcel was subdivided. Plaintiff sued to remove the restriction; plaintiff intended to subdivide Parcel 1, thereby increasing the traffic volume on the private roads subject to the Parcels 2 and 3 nonexclusive easements. The Court of Appeal affirmed a judgment enjoining plaintiff from conveying any right to use Parcels 2 and 3 except in conjunction with the use of Parcel 1 as one single-family building site. Thus, the case is wholly irrelevant to the present facts. The case did not hold the “single family residential use restriction prevented use of two lots for access road purposes” and no attorney reasonably could conclude that was its holding. (See Bus. & Prof. Code, § 6068, subd. (d).) In fact, the case upheld the use of the roadway easements for access to a single-family lot in accordance with the terms of the easements.