Filed 9/10/19

                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                         DIVISION SIX


SOUTHERN CALIFORNIA                     2d Civ. No. B286354
EDISON COMPANY,                       (Super. Ct. No. 56-2013-
                                      00437692-CU-OR-VTA)
  Plaintiff, Cross-Defendant             (Ventura County)
and Respondent,

v.

STEVEN SEVERNS,

  Defendant, Cross-
Complainant and Appellant.



       Steven Severns owns a 15.82-acre parcel of property (the
property) which is burdened by three public utility easements
granted to Southern California Edison Company (SCE). SCE
maintains electrical power lines and supporting structures within
a 10-foot wide strip along the eastern boundary of the property.
That strip is described by metes and bounds in the recorded
conveyances. Each conveyance also grants SCE “free access” to
its electrical facilities.
       It is undisputed SCE may use the 10-foot wide strip for
utility purposes, but the parties disagree as to whether SCE has
the right to access that area by traversing other portions of the
property. For nearly 80 years, the property owners allowed such
access. When Severns denied access in 2008, SCE brought this
action for interference with easement and declaratory relief.
Severns cross-complained, seeking damages for nuisance,
trespass and ejectment.
       The trial court summarily adjudicated the cross-claims in
SCE’s favor. It determined the claims are barred by the three-
year statute of limitations in Code of Civil Procedure section 338,
subdivision (b)1 because the alleged nuisance is permanent rather
than continuing. (See KFC Western, Inc. v. Meghrig (1994) 23
Cal.App.4th 1167, 1180 (KFC Western).)
       Following a five-day bench trial, the court found, based on
the language in the recorded conveyances, that SCE was granted
“floating easements” over the property to access its electrical
facilities. Although the floating easements burdened the
property at the time of creation, they did not become “fixed”
easements until SCE and the property owners agreed on the
access routes. At that point, SCE became “the owner of an
easement of reasonable width” over each agreed-upon access
route. The judgment entitles SCE “to ‘free’ (i.e. unimpeded)
access” to those routes.
       Severns appeals both the post-trial decision and the
pretrial summary adjudication ruling. He contends the
easements granted to SCE are limited to the metes-and-bounds
descriptions in the recorded conveyances. He further asserts
triable issues of material fact exist as to whether his cross-claims
are time-barred. We conclude the trial court properly determined


      1All statutory references are to the Code of Civil Procedure
unless otherwise specified.




                                 2
SCE owns easements over the agreed-upon access routes. Since
its findings also establish the alleged nuisance is permanent,
Severns’s challenge to the summary adjudication ruling is moot.
We affirm.
         FACTUAL AND PROCEDURAL BACKGROUND
       The property is located near the corner of Moorpark and
Olsen Roads in the City of Thousand Oaks. SCE placed seven
electrical power poles on the property in accordance with
easements granted by Nils, Ellen and Nicholas Olsen. The poles,
which are situated on steep, rocky hillsides, are identified, from
north to south, as Poles 1 through 7.
       The first of the three easement conveyances was recorded
on September 10, 1930. The conveyance grants a four-foot wide
easement, described by metes and bounds, and allows for
placement of five electrical power poles along the easternmost
portion of the property. The instrument states: “The Grantee
[SCE] and its employees and agents, shall, at any time when
necessary, and at all reasonable times, have free access to the
said poles or H-frames, and fixtures thereon, for the purpose of
constructing, repairing, renewing, maintaining, replacing and
operating such electric lines.”
       The second conveyance was recorded on February 14, 1956.
It grants a 10-foot wide easement, described by metes and
bounds, and states: “The Grantee [SCE], its successors and
assigns, and its and their respective agents and employees, shall
have the right to trim or top such trees as may endanger or
interfere with said electric line, and shall have free access to said
electric line and every part thereof, at all times, for the purpose of
exercising the rights herein granted.”
       The third conveyance was recorded on February 16, 1961.
It has two metes-and-bounds descriptions, running from the




                                  3
north to the south ends of the property. The width of the
easement is 20 feet, centered on the property line, meaning 10
feet is on the property and 10 feet is on an adjacent parcel.
Consistent with the prior conveyances, the instrument states:
“The Grantee [SCE], its successors and assigns, and its and their
agents and employees, shall have free access to said electric lines
and every part thereof, at all times, for the purpose of exercising
the rights herein granted.”
       Gerald Olsen testified his family routinely allowed SCE
employees to drive their trucks over the property to inspect and
maintain the electrical power lines, poles and equipment. He
recalled his family gave SCE such access to replace a pole in 1946
or 1947. Olsen described the family’s relationship with SCE as
“very friendly.”
       At some point, a locked gate was installed across the
driveway to the property. When Severns purchased the property
in 2006, he gave SCE the gate code and allowed it to continue
using the then-existing routes to access its electrical facilities.
SCE used those routes about three times a year.
       From 1986 to 2007, Robert Martinez, an SCE “lineman,”
was assigned to inspect and service the electrical power poles and
equipment on the property. In 1986, Martinez’s supervisor gave
him an aerial photograph of the property which showed the dirt
roads used to access the poles. Martinez testified he drove over
those roads to reach Poles 3, 5 and 6. From those locations,
Martinez used binoculars to inspect Poles 2 and 4. He also used
binoculars to inspect Poles 1 and 7 from the public streets.
       In 2008, SCE informed Severns it needed to replace Poles 1,
5 and 6. The parties discussed the routes that could be used to
reach the poles. Severns objected to the use of the route
historically utilized to access Pole 5. He complained that SCE




                                4
trucks had damaged pipes along the route and that it was too
close to the back of his house. The parties agreed SCE would
construct an alternative route. As the trial court observed, “[t]he
new route branched off the road to Pole #6, just south and east of
the house, and then extended along the east side of the residence
to merge with the former route to Pole #5. The newly created
route was steep and, during the work on the poles, the trucks had
to be pulled up the steepest stretch with a bulldozer.”
       Severns believed the new 2008 route would be temporary.
There was no written agreement to that effect, but Severns
testified George Perez, an SCE representative, told him “before
the road construction that after [Pole 5] was replaced SCE would
put the property back in the same condition that it was in prior to
the construction of the road.” After the pole was replaced,
Severns asked SCE to return the route to its former condition.
SCE did not do so.
       Ryan Brown, a senior patrolman for SCE, knew SCE had
cut a dirt road into the hillside to facilitate replacement of Pole 5,
but was unaware of any agreement between Severns and SCE to
return the road to its original condition. Matthew Payne, a
construction crew foreman, testified that such roads are
“[u]sually permanent.” Adam Bell, an SCE general supervisor,
stated the road was constructed in the manner approved by
Severns. Bell testified SCE typically does not remove roads once
they are established.
       Severns conceded he had no problem with SCE’s use of the
access routes until the dispute arose regarding the 2008 route.
Severns removed the gate access code/tumbler box and took other
steps to prevent SCE’s access. He suggested that SCE use
adjacent properties or helicopters to access its electrical facilities.




                                  5
      SCE subsequently filed this action. In its second amended
complaint, SCE alleged Severns unreasonably interfered with its
easement rights by placing structures and trees on the property,
by refusing to allow it to construct a new access route, and by
blocking its access to the property for routine and emergency
maintenance.
      In his first amended cross-complaint, Severns alleged
claims for continuing nuisance, permanent nuisance, trespass
and ejectment.2 SCE moved for summary adjudication of the
cross-claims, arguing they are barred by the three-year
limitations period in section 338, subdivision (b). Severns
asserted that because the hillside along the 2008 route can be
repaired, the nuisance is abatable and therefore continuing, not
permanent. The trial court granted the motion, concluding the
2008 route is not a continuing nuisance. It determined that if
Severns “wanted [SCE] to stand by its (alleged) commitment to
restore the property, he had to act within three years after the
bulldozer finished its work. He did not do so.”
      Following trial and a site visit, the trial court issued a
proposed statement of decision. The court rejected both SCE’s
position that it is entitled to unfettered access over the property
and Severns’s position that the easements are limited to the
metes-and-bounds descriptions, i.e., the 10-foot wide strip defined
in the recorded conveyances. It determined the conveyances
grant SCE floating easements over the property to permit the
inspection and maintenance of its electrical facilities. The


      2 Severns also sought to quiet title with respect to a deeded
easement executed by Joel and Francis McCrea in 1961. SCE
conceded this easement does not burden the property and thus
did not oppose the claim.




                                 6
floating easements became “fixed” easements when SCE and the
property owners agreed on the access routes.
       The trial court further found SCE and Severns had agreed
by acquiescence to abandon the original route to Pole 5 and to
change the location of that access easement to the 2008 route.
The court concluded SCE may not construct a new access route or
use portions of the property falling outside the 10-foot wide strip
and the delineated access routes, but it may perform geotechnical
testing incident to repairs and improvements on those routes and
trim or remove interfering trees.
       Accordingly, the trial court entered judgment in SCE’s
favor on the second amended complaint and the first amended
cross-complaint. It confirmed SCE is the owner of access
easements of reasonable width over the routes identified in the
judgment.
                            DISCUSSION
          A. The Recorded Conveyances Grant SCE Floating
                   Easements for Access Purposes
       Severns contends the trial court erred by finding the Olsen
family granted SCE multiple floating easements outside the area
defined by the metes-and-bounds footage descriptions in the
recorded conveyances. He claims the law and substantial
evidence do not support the court’s decision. We conclude
otherwise.
                         1. Standard of Review
       In interpreting a conveyance, the intent of the parties is the
paramount consideration. (Civ. Code, § 1636; City of Manhattan
Beach v. Superior Court (1996) 13 Cal.4th 232, 238 (City of
Manhattan Beach); Machado v. Title Guarantee and T. Co. (1940)
15 Cal.2d 180, 186.) “It is not the intent of the grantor that




                                 7
governs in such cases. It is the joint intent of the grantor and the
grantee.” (Marlin v. Robinson (1932) 123 Cal.App. 373, 375.)
       “Grants are to be interpreted in like manner with contracts
in general.” (Civ. Code, § 1066; City of Manhattan Beach, supra,
13 Cal.4th at p. 238.) “The interpretation of an easement, which
does not depend upon conflicting extrinsic evidence, is a question
of law.” (Van Klompenburg v. Berghold (2005) 126 Cal.App.4th
345, 349; McCann v. City of Los Angeles (1978) 79 Cal.App.3d
112, 115, fn. 2.) We apply independent review to questions of
law. (Kellogg v. Garcia (2002) 102 Cal.App.4th 796, 802-803.) To
the extent resolution of the appeal turns on the trial court’s
factual findings, we review such findings under the substantial
evidence standard. (See Orange County Water Dist. v. MAG
Aerospace Industries, Inc. (2017) 12 Cal.App.5th 229, 239-240.)
                  2. Creation of the Floating Easements
       At trial, the parties advanced different interpretations of
the recorded conveyances. SCE claimed it is entitled to access its
electrical facilities by any “feasible” route over the property.
Severns argued SCE’s use of the property is limited to the
specifically defined 10-foot wide strip. We conclude the trial
court correctly determined “the legal effect of the conveyance[s]
falls between [those] opposing positions.”
       Each of the three recorded conveyances contains broad
language affording SCE “free access” to its electrical facilities for
inspection and maintenance purposes. The 1930 instrument
grants SCE “free access to the said poles or H-frames, and
fixtures thereon, for the purpose of constructing, repairing,
renewing, maintaining, replacing and operating such electric
lines.” (Italics added.) The 1956 and 1961 instruments similarly
grant SCE “free access to [its] electric lines and every part




                                  8
thereof, at all times, for the purpose of exercising the rights
herein granted.” (Italics added.)
       The recorded conveyances do not identify the portion or
portions of the property that may be used to allow SCE “free
access” to its electrical facilities. Some expressly granted
easements -- commonly known as “floating easements” -- are not
specifically defined as to location by the creating conveyance.
(City of Los Angeles v. Howard (1966) 244 Cal.App.2d 538, 541.)
Such easements are nonetheless fully valid and enforceable by
their holders. As we stated in Colvin v. Southern Cal. Edison Co.
(1987) 194 Cal.App.3d 1306 (Colvin), abrogated on another
ground by Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1106-1108,
“[e]asements and licenses may, but need not, have definite
boundaries other than the boundaries of the servient tenements
themselves. An easement granted in general terms, nonspecific
as to its particular nature, extent or location, is . . . perfectly
valid. It entitles the holder to choose a ‘reasonable’ location and
to use such portion of the servient tenement as may be
reasonably necessary for the purposes for which the easement
was created. The use actually made by the holder over a period
of time fixes the location and the nature and extent of the use.
[Citations.] Such an easement necessarily carries with it not only
the right but also the duty to maintain and repair the structure
or facility for which it was created. [Citations.]” (Id. at p. 1312;
see 6 Miller & Starr, Cal. Real Estate (4th ed. 2018) § 15:50, pp.
184-186.)
       Severns argues the “free access” language in the
conveyances simply means SCE is entitled to move freely within
the 10-foot wide metes-and-bounds easement area. The trial
court rejected this interpretation, concluding “[t]he interest
conveyed was a ‘floating easement’ for access purposes.”




                                 9
       The recorded conveyances “must be interpreted as a whole,
with each clause aiding the interpretation in the attempt to give
purpose to every part, and the interpretation should, where
possible, give effect to every part so that no clause is redundant.”
(Super 7 Motel Associates v. Wang (1993) 16 Cal.App.4th 541, 546
(Super 7); see Brandwein v. Butler (2013) 218 Cal.App.4th 1485,
1507 (Brandwein) [“when interpreting a contract, we strive to
interpret the parties’ agreement to give effect to all of a contract’s
terms, and to avoid interpretations that render any portion
superfluous, void or inexplicable”].)
       It is undisputed the recorded conveyances, taken together,
grant SCE easements over the 10-foot wide strip for utility
purposes. This grant would be meaningless if SCE could not
move freely within that strip to construct, replace, inspect and
maintain its electrical power poles, lines and equipment. Thus,
SCE’s right to move freely within that area is not dependent
upon the “free access” language. The only reasonable
interpretation is that the Olsen family intended, through that
language, to grant SCE some right of access over the property to
reach its electrical facilities. Under Severns’s interpretation, the
“free access” language would be both redundant and unnecessary.
(See Brandwein, supra, 218 Cal.App.4th at p. 1507; Super 7,
supra, 16 Cal.App.4th at p. 546.)
       This is particularly evident in the 1930 conveyance, which
grants SCE a four-foot wide defined easement to maintain five
electrical power poles. It also gives SCE “free access” to the
“poles or H-frames, and fixtures thereon, for the purpose of
constructing, repairing, renewing, maintaining, replacing and
operating [the] electric lines.” Gerald Olsen confirmed SCE’s
replacement of a pole in 1946 or 1947. SCE employees testified it
would be impossible to replace a pole with a ground crew without




                                 10
using line trucks. If “free access” were limited to the four-foot
defined easement, the remainder of the language would be
superfluous. (See Brandwein, supra, 218 Cal.App.4th at p. 1507;
Super 7, supra, 16 Cal.App.4th at p. 546.) That area is not wide
enough to support vehicular access for pole replacement and
other maintenance.
       The 1956 and 1961 conveyances extend the width of the
metes-and-bounds easement to 10 feet, but the grantor, Nicholas
Olsen, once again accorded SCE “free access” to its electrical
facilities “for the purpose of exercising the rights herein granted.”
The conveyances do not limit SCE’s “free access” to the 10-foot
wide strip, and it is reasonable to conclude the grantor intended
to preserve SCE’s access rights to that area.
       Even if we assume the “free access” language is ambiguous,
the extrinsic evidence established the Olsen family understood
the recorded conveyances grant SCE the right to traverse the
property to access the 10-foot wide strip. “‘It is a “cardinal rule of
construction that when a contract [or conveyance] is ambiguous
or uncertain the practical construction placed upon it by the
parties before any controversy arises as to its meaning affords
one of the most reliable means of determining the intent of the
parties.” [Citation.]’” (Jacobs v. Locatelli (2017) 8 Cal.App.5th
317, 326; Gramer v. City of Sacramento (1935) 2 Cal.2d 432, 440.)
The evidence confirmed that for decades the Olsen family freely
allowed SCE to drive over the property to access its electrical
facilities. Severns similarly permitted access until the dispute
arose over the restoration of the 2008 route. This historical
usage of the property is consistent with our interpretation of the
conveyances.




                                 11
                   3. Location of the Access Easements
       Where, as here, “an instrument conveys or reserves an
unlocated, ‘floating’ easement, it is presumed that the parties
intended to establish a reasonably suitable and convenient route
in view of the anticipated needs of both parties.” (6 Miller &
Starr, supra, §15:50, p. 185, fn. omitted; Colvin, supra, 194
Cal.App.3d at p. 1312.) “Thus, the right cannot be exercised over
the entire servient tenement, but until the easement is located, it
is a cloud on the title to all of the property.” (6 Miller & Starr,
supra, § 15:50, p. 185; fn. omitted; Youngstown Steel Products Co.
v. City of Los Angeles (1952) 38 Cal.2d 407, 410 (Youngstown);
Maywood Mut. Water Co. No. 2 v. City of Maywood (1972) 23
Cal.App.3d 266, 270.)
       Severns contends substantial evidence does not support the
trial court’s finding the recorded conveyances grant easements for
access purposes over the property. As we have discussed, the
easements were floating at the time they were conveyed because
the routes to access SCE’s electrical facilities had yet to be fixed.
“The use of the easement in a particular course without objection
by the owner of the servient tenement establishes [or fixes] the
easement along the route used.” (6 Miller & Starr, supra,
§ 15:50, pp. 186-187, fn. omitted; Colvin, supra, 194 Cal.App.3d
at p. 1312.) Once that occurs, the easement’s location is no longer
floating and cannot be altered without the parties’ consent.
(6 Miller & Starr, supra, § 15:50, pp. 186-187, fn. omitted.)
       SCE maintains the floating easements became fixed
easements when the Olsen family and then Severns permitted
SCE to access its electrical facilities by using certain dirt roads
traversing the property. As the trial court observed, “prior to
2008 there was a long and uncontested history of use of the
property by SCE for access purposes along the routes indicated”




                                 12
by Martinez on the aerial photograph introduced at trial. Gerald
Olsen testified his family had no problem affording SCE such
access, and Severns acknowledged he had allowed access until
2008. This evidence overwhelmingly supports the court’s
conclusion that SCE has a fixed access easement over all but one
of the routes appearing on the photograph.
       The exception involves the original route to Pole 5. The
trial court found the route changed in 2008 when Severns asked
SCE to construct an alternative route to that pole. Because
substantial evidence supports the court’s finding “the original
route across the north side of the house has been abandoned and
that the road along the east side of the house has been
established as the new access route,” we uphold its determination
that SCE is the owner of access easements over the routes,
including the 2008 route, identified in the judgment. We are not
persuaded by Severns’s argument the 2008 route was meant to be
temporary. The court heard conflicting testimony on this issue
and ruled in SCE’s favor. Such credibility determinations are the
province of the trial court. (Harustak v. Wilkins (2000) 84
Cal.App.4th 208, 213; see Conservatorship of Amanda B. (2007)
149 Cal.App.4th 342, 347 [“An appellate court . . . will sustain the
trial court’s factual findings if there is substantial evidence to
support those findings, even if there exists evidence to the
contrary”].)
       Severns also asserts the trial court abused its discretion by
denying his request to introduce evidence that SCE could have
used a neighboring property to access its electrical facilities. This
evidence is irrelevant because the court’s decision is based on
contract principles, i.e., the recorded conveyances grant SCE (1)
a utility easement over the area described by metes and bounds
and (2) floating easements for the purpose of accessing that




                                 13
defined area. The floating easements became fixed easements
once SCE and the property owners agreed upon the access routes.
(See 6 Miller & Starr, supra, § 15:50, pp. 186-187, fn. omitted;
Colvin, supra, 194 Cal.App.3d at p. 1312.) That SCE may have
had other access options does not affect the rights granted by the
conveyances.
           B. SCE Did Not Forfeit Its Statute of Limitations
                      Defense to the Cross-Claims
       Prior to trial, the court granted SCE’s motion for summary
adjudication of Severns’s cross-claims for nuisance, trespass and
ejectment based on the expiration of the three-year statute of
limitations in section 338, subdivision (b). Severns argues SCE
forfeited that affirmative defense by failing to properly plead it in
its answer to the first amended cross-complaint. SCE alleged the
cross-claims are “barred by the applicable statutes of limitation
including, but not limited to, those set forth in [sections] 312, et
seq.”
       Section 458 provides: “In pleading the statute of
limitations it is not necessary to state the facts showing the
defense, but it may be stated generally that the cause of action is
barred by the provisions of section ___ (giving the number of the
section and subdivision thereof, if it is so divided, relied upon) of
the Code of Civil Procedure; and if such allegation be
controverted, the party pleading must establish, on the trial, the
facts showing that the cause of action is so barred.” This section
“has been strictly construed as requiring that the relevant
statute and subdivision, if applicable, be pleaded, otherwise the
answer fails to raise the statute of limitations defense.” (Coy v.
County of Los Angeles (1991) 235 Cal.App.3d 1077, 1086, fn. 5
(Coy).) “Enforcement of that rule, however, depends upon the
diligence with which the opposing party objects to the pleading




                                 14
defect by way of demurrer or otherwise.” (Ibid.; Davenport v.
Stratton (1944) 24 Cal.2d 232, 246-248; Hydro-Mill Co., Inc. v.
Hayward, Tilton and Rolapp Ins. Associates, Inc. (2004) 115
Cal.App.4th 1145, 1165.)
       In Coy, the Court of Appeal determined the “plaintiff
waived his objection to the manner in which [the defendant]
pleaded its statute of limitations defense by failing to diligently
raise and secure a ruling on that objection at the time of the
summary judgment motion hearing.” (Coy, supra, 235
Cal.App.3d at p. 1086, fn. 5.) The same is true here. Severns did
not object to SCE’s pleading of the defense, either through a
demurrer or in opposition to SCE’s summary adjudication
motion. Consequently, he has waived any such objection to the
pleading. (Ibid.; see In re Marriage of Walker (2006) 138
Cal.App.4th 1408, 1418 [permitting a party to raise a new theory
on appeal is unfair to the trial court and unjust to the opposing
litigant].)
            C. Severns’s Challenge to the Pretrial Summary
                        Adjudication Ruling is Moot
       Severns contends that even if SCE did not forfeit its statute
of limitations defense, the summary adjudication ruling must be
reversed because triable issues of material fact exist regarding
the timeliness of his cross-claims. He specifically contests the
trial court’s pretrial determination that SCE’s creation of the
2008 route constitutes a permanent, rather than continuing,
nuisance.3



      3Different judges presided over the trial and summary
adjudication proceedings. To avoid confusion, we refer to the
judge who issued the post-trial decision as the “trial judge.”




                                15
       It is undisputed the cross-claims are governed by the three-
year statute of limitations for damage to real property. (§ 338,
subd. (b).) It also is undisputed the alleged damage occurred in
2008, when SCE constructed the new access route to Pole 5.
Severns did not file his cross-complaint until 2013.
       “If a nuisance is permanent, the plaintiff ordinarily must
bring one action for all past, present and future damage within
three years after the permanent nuisance is created. [Citation.]
If on the other hand the nuisance is continuing, every repetition
of the continuing nuisance is a separate wrong, subject to a new
and separate limitation period for which the plaintiff may bring
successive actions for damages until the nuisance is abated even
though an action based on the original wrong may be barred.
[Citations.]” (KFC Western, supra, 23 Cal.App.4th at p. 1180;
accord McCoy v. Gustafson (2009) 180 Cal.App.4th 56, 106.)
       In their original briefing, the parties did not discuss
whether an affirmance of the post-trial decision in SCE’s favor
would affect Severns’s argument that triable issues of material
fact remain regarding whether the alleged nuisance is permanent
or continuing. Generally, an “error may lead to reversal only if
we are persuaded ‘upon an examination of the entire cause’ that
there has been a miscarriage of justice. In other words, we are
not to look to the particular ruling complained of in isolation, but
rather must consider the full record in deciding whether a
judgment should be set aside.” (Waller v. TJD, Inc. (1993) 12
Cal.App.4th 830, 833.)
       We asked the parties to submit supplemental letter briefing
on the following issue: “Would an affirmance of Judge Borrell’s
determination that respondent owns an easement for access
purposes over the 2008 route undermine or otherwise affect
appellant’s argument that the alleged nuisance is a continuing




                                16
rather than a permanent nuisance? (See Spaulding v. Cameron
(1952) 38 Cal.2d 265, 267 . . .; Spar v. Pacific Bell (1991) 235
Cal.App.3d 1480, 1484 . . . . In other words, assuming respondent
acquired an access easement over the 2008 route at the time it
was created, is it possible to conclude the alleged nuisance is a
continuing nuisance?” (See § 437c, subd. (m)(2).)
       Severns’s supplemental brief reiterates his position that
“[t]he easement documents do not include a right to maintain and
build roads on [the] property” and that “[t]he temporary dirt road
is not a permanent nuisance.” We have rejected the first
contention and determined substantial evidence supports the
trial judge’s finding that the 2008 route was not meant to be
temporary.
       SCE maintains “the floating easement determination, if
affirmed, showed permanence [of the alleged nuisance]. So, in
essence, this is the end game in this case, no matter what the
prior consonant determination.” We agree. To the extent a
triable issue of material fact did exist regarding the nature of the
nuisance, it was resolved by the trial judge. His findings support
only one conclusion, i.e., the alleged nuisance is permanent
rather than continuing. Hence, any possible error in the pretrial
summary adjudication of that issue is irrelevant.
       As our Supreme Court has stated “[t]he clearest case of a
permanent nuisance or trespass is the one where the offending
structure or condition is maintained as a necessary part of the
operations of a public utility. Since such conditions are ordinarily
of indefinite duration and since the utility by making
compensation is entitled to continue them, it is appropriate that
only one action should be allowed to recover for all the damages
inflicted. It would be unfair to the utility to subject it to
successive suits and unfair to the injured party if he were not




                                17
allowed to recover all of his probable damages at once.”4
(Spaulding v. Cameron, supra, 38 Cal.2d at p. 267.)
       In Spar v. Pacific Bell, supra, 235 Cal.App.3d 1480, the
defendant utility company voluntarily removed underground
telephone conduits, lines and manholes before trial. (Id. at
p. 1482.) Notwithstanding their removal, the court concluded the
structures had the characteristics of a permanent nuisance. (Id.
at p. 1486.) The structures were intentionally placed to provide
indefinite service to the public, their installation and removal
required considerable effort and heavy equipment, and the public
utility could have kept the structures by paying fair
compensation. (Ibid.)
       Here, the trial judge found SCE had a fixed access
easement over the original route to Pole 5. When the parties
agreed to replace that route in 2008, SCE acquired an access
easement over the new route to facilitate pole replacement and
other utility upkeep. (See Youngstown, supra, 38 Cal.2d at pp.
410-411; Colvin, supra, 194 Cal.App.3d at p. 1312.)
Consequently, the 2008 route “is maintained as a necessary part
of the operations of a public utility.” (Spaulding v. Cameron,
supra, 38 Cal.2d at p. 267.) In addition, there is no question that
SCE expended considerable effort to construct the route, which


      4 Severns contends this language is dicta. Even if he is
correct, “[g]enerally speaking, [we] follow dicta from the
California Supreme Court.” (Hubbard v. Superior Court (1997)
66 Cal.App.4th 1163, 1169.) This is particularly true where, as
here, the same language has been quoted and applied in
subsequent cases. (E.g., Baker v. Burbank-Glendale-Pasadena
Airport Authority (1985) 39 Cal.3d 862, 874; Kornoff v. Kingsburg
Cotton Oil Co. (1955) 45 Cal.2d 265, 270; Santa Fe Partnership v.
ARCO Products Co. (1996) 46 Cal.App.4th 967, 974.)




                                18
required the use of bulldozers and other heavy equipment, and
that its removal would be similarly difficult. (See Spar v. Pacific
Bell, supra, 235 Cal.App.3d at p. 1486.) Indeed, Severns concedes
the removal would cost about $315,000.
       The trial judge further found the 2008 route was of
indefinite duration and may only be altered with the parties’
consent. (See Spaulding v. Cameron, supra, 38 Cal.2d at p. 267.)
Given SCE’s contractual right to indefinitely use the 2008 access
route for public utility purposes, this case falls squarely within
the Supreme Court’s definition of “[t]he clearest case of a
permanent nuisance.” (Ibid.) Accordingly, “only one action
should be allowed to recover for all the damages inflicted.” (Ibid.;
Spar v. Pacific Bell, supra, 235 Cal.App.3d at p. 1486; see
Mangini v. Aerojet-General Corp. (1996) 12 Cal.4th 1087, 1100
[“Regardless of literal abatability, where as a practical matter
either abatement or successive lawsuits would be inappropriate
or unfair then the nuisance may be regarded as permanent and
the plaintiff relegated to a single lawsuit, subject to a single
limitation period, for all past and anticipated future harms”].)
       Severns does not dispute that he missed the three-year
deadline for filing claims based on a permanent, rather than
continuing, nuisance. (See § 338, subd. (b); Beck Development Co.
v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th
1160, 1216-1217; KFC Western, supra, 23 Cal.App.4th at p. 1180.)
The trial judge’s post-trial findings preclude a determination the
alleged nuisance is continuing and thus confirm its permanent
nature. Since that issue was resolved at trial, Severns’s
challenge to the pretrial summary adjudication of the issue is




                                19
moot.5 (MHC Operating Limited Partnership v. City of San Jose
(2003) 106 Cal.App.4th 204, 214 [“A case is moot when the
decision of the reviewing court ‘can have no practical impact or
provide the parties effectual relief’”]; Steiner v. Superior Court
(2013) 220 Cal.App.4th 1479, 1485 [same].)
                          DISPOSITION
      The judgment is affirmed. SCE shall recover its costs on
appeal.
       CERTIFIED FOR PUBLICATION.




                                     PERREN, J.

We concur:



             YEGAN, Acting P. J.



             TANGEMAN, J.




      5 In light of our decision, we deny Severns’s request for
judicial notice filed on April 29, 2019.




                                20
                   Mark S. Borrell, Judge
                   Rebecca S. Riley, Judge
              Superior Court County of Ventura
               ______________________________

     Slaughter, Reagan & Cole, William M. Slaughter, Barry J.
Reagan, Gabriele M. Lashly and Jonathan D. Marshall for
Defendant, Cross-Complainant and Appellant.
     AlvaradoSmith, Keith E. McCullough and William M.
Hensely, for Plaintiff, Cross-Defendant and Respondent.




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