Filed 6/6/13 McChesney v. Cal. Home Development CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO


WILLIAM McCHESNEY,                                                   B237410

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. EC046691)
         v.

CALIFORNIA HOME DEVELOPMENT,
LLC, et al.,

         Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Laura Matz, Judge. Reversed and remanded with directions in part and affirmed in part.


         Marla A. Martinez for Plaintiff and Appellant.


         L. Douglas Brown for Defendants and Respondents.


                  ___________________________________________________
       Plaintiff and defendants have had a multitude of property-related disputes, which
resulted in numerous lawsuits. The instant case went to trial in January 2011. This
appeal pertains to two issues: (1) whether an express easement in favor of defendants
was terminated by adverse possession, and (2) whether plaintiff has easement rights over
defendants’ side of a private dirt road. Plaintiff, appellant, contends that the trial court
erred by finding an easement over his property effective in favor of defendants, and by
finding that he did not have an easement over defendants’ half of the private dirt road.
We reverse on the first issue and affirm on the second.
                  FACTUAL AND PROCEDURAL BACKGROUND
       Plaintiff lives at 9949 ½ Wheatland Avenue in Shadow Hills, a property he
acquired in 1998. Shadow Hills is an “equestrian area,” relatively undeveloped and rural
compared to other parts of Los Angeles.
       Defendant California Home Development, LLC (CHD), the principal of which is
defendant Patrick Wizmann, owns a 17 ½-acre property that surrounds McChesney’s
property on three sides. CHD purchased its property in 1999. Approximately five to 10
years ago, it attempted to develop a 21-home subdivision on the property, but was
stymied by legal challenges.
The Eastern Border of McChesney’s property
       McChesney lives on a rectangular lot of about 27,400 square feet. The southern,
western, and northern sides of his property are adjacent to CHD land, as is a small portion
of the eastern side. Most of the eastern edge of his property runs contiguous to land
owned by a neighbor, Bobby Ross.
       McChesney’s lot was first created by deed in 1946 by William Ensign, a former
owner of the property. That deed expressly provided that the lot would have: “[a]n
easement for travel to adjacent property . . . over the east eight (8) feet of the property . . .
with as little damage as possible to the ornamental growth thereon.” Parcel 29, one of the
many lots owned by CHD, lies directly north of this easement. Wizmann testified at trial
that the eight-foot easement over McChesney’s land was parcel 29’s only legal access to
nearby streets and that, but for the easement, parcel 29 is “landlocked.”

                                                2
       McChesney testified that that he uses the eight-foot easement area as one of two
driveways for his home. The driveway is unpaved and is bordered on its western side by
tall, mature trees, some of which extend into the driveway, narrowing it at parts.
McChesney shares the driveway along the easement area with his neighbor, Ross. Ross
testified that the area is a “common driveway”—part lying on Ross’s property and part on
McChesney’s—that since 1985 has been utilized by Ross, McChesney, and McChesney’s
predecessors. Others were allowed to use the common driveway only if they obtained
permission.
       In 1998, McChesney had a gate built to block access to the common driveway at
its midway point. He keeps the gate locked to prevent others from using the driveway.
He and Ross have the keys.
Ensign Drive
       “Ensign Drive” is a private, unpaved dirt road that provides the only access to the
McChesney and Ross properties, and also provides access to CHD properties. It runs
east-west along the southern edges of McChesney’s and Ross’s properties and joins with
Wheatland Avenue (a paved City street) at its eastern terminus. The road is
approximately 50 feet wide. The northern half of the road is owned by McChesney and
his neighbors, while the southern half is owned by CHD.
       McChesney and various neighbors testified at trial that they and their guests
frequently park on both the north and south sides of Ensign Drive. Wizmann testified
that when people park on the southern side of Ensign Drive it poses potential security and
liability risks to him, and that it can impede access along the drive.
The Statement of Decision
       Following trial, the trial court issued a lengthy statement of decision. The court
found that McChesney failed to prove that he had extinguished CHD’s eight-foot-wide
easement along the eastern edge of his property, because the requisite five-year period for
adverse possession was not met. The court determined that the adverse possession period
began to run when McChesney had the gate built blocking the easement in September
1998. CHD filed a quiet title action in April 2003, less than five years later, and the court

                                              3
found that the lawsuit interrupted McChesney’s adverse possession of the easement.
Furthermore, McChesney and CHD entered into a settlement agreement resolving the
2003 quiet title action. The court interpreted release language in that settlement
agreement as “preserv[ing] express easements,” including the eight-foot easement at
issue.
         The court further held that McChesney has no right to park on the southern side of
Ensign Drive, as he had waived his right to do so in the earlier settlement agreement.
However, McChesney retained the right to park on the northern side of the drive.
                                       DISCUSSION
         On appeal, McChesney argues that he extinguished CHD’s easement over the
eastern side of his property through adverse possession and contends that the trial court’s
decision otherwise is not supported by substantial evidence. McChesney also argues that
he has the right to park vehicles on the south side of Ensign Drive. We address each of
these issues in turn.
I. The Eastern Edge of McChesney’s Property
         McChesney challenges the sufficiency of the evidence supporting the trial court’s
decision finding no adverse possession. We therefore apply the substantial evidence
standard of review. (See Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-
631.) “Substantial evidence” is not synonymous with “any” evidence, but instead is
“evidence of ponderable legal significance . . . that is reasonable, credible and of solid
value.” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) “Substantial”
refers to the quality, not the quantity, of evidence. (Ibid.) “In general, in reviewing a
judgment based upon a statement of decision following a bench trial, ‘any conflict in the
evidence or reasonable inferences to be drawn from the facts will be resolved in support
of the determination of the trial court decision. [Citations.]’ [Citation.]” (Estate of
Young (2008) 160 Cal.App.4th 62, 75-76.) “We may not reweigh the evidence and are
bound by the trial court’s credibility determinations. [Citations.] Moreover, findings of
fact are liberally construed to support the judgment. [Citation.]” (Id. at p. 76.)



                                              4
       The parties do not dispute that the 1946 deed created an express easement over the
eastern eight feet of McChesney’s property for the benefit of the land now held by CHD.
But an easement may be extinguished by adverse possession. “[A]n easement, regardless
of whether it was created by grant or use, may be extinguished by the owner of the
servient tenement upon which the easement is a burden, by adverse possession thereof by
the servient tenement owner for the required statutory period. Perhaps more accurately
stated an easement may be extinguished by the user of the servient tenement in a manner
adverse to the exercise of the easement, for the period required to give title to land by
adverse possession.” (Glatts v. Henson (1948) 31 Cal.2d 368, 370-371.) Adverse
possession is established by continuous, open, and notorious use or possession of a
property, hostile to the true owner and under a claim of title, for a period of five years,
while paying all taxes levied and assessed against the land during that period. (Gilardi v.
Hallam (1981) 30 Cal.3d 317, 321; Taormino v. Denny (1970) 1 Cal.3d 679, 686.)
       Evidence at trial showed that McChesney paid taxes on the disputed property for
the time period at issue. The issue was whether the other elements of adverse possession
were met. The trial court found that they were not because “McChesney took his
property with knowledge that this easement burdened the eastern 8 feet of his lot by
virtue of an express grant in the deed, that the easement was not lost due to adverse
possession prior to his purchase of the land, that the easement was not destroyed by non-
use given no evidence of a manifested intent to abandon it, that his adverse possession
was interrupted at 4 years and 7 months, and that he agreed in the Settlement Agreement
to preserve express easements.”
       A. The back fence
       McChesney argues that adverse possession was established over the easement
prior to the time he took possession of the property. The trial court found that
McChesney built a fence at the back of his property blocking the easement, but that this
fence was only built in 1998 and did not exist long enough to establish adverse
possession. From the record, it appears that the trial court was mistaken. McChesney
and others testified that McChesney simply replaced the fence—that McChesney’s

                                              5
predecessor built a fence near the northern boundary blocking the easement well prior to
1998. Although the trial court erred in its recitation of facts, however, this error does not
compel reversal. Evidence showed that the fence at issue was built on CHD (and its
predecessors’) property, not on what is McChesney’s property. Since the easement that
McChesney sought to have extinguished was located on his own property, not CHD’s,
the easement could not be impacted by a fence built on CHD’s property.
       B. The gate and the prior action
       McChesney also argues that the gate he had built in August 1998 established
adverse possession. The trial court found that the gate would be sufficient evidence of
adverse possession, but that it did not stand long enough to establish the right, as CHD
filed a quiet title action in April 2003, less than five years later. The filing of a legal
action contesting a property right interrupts the continuous five-year requirement for
adverse possession. (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 325; California
Maryland Funding, Inc. v. Lowe (1995) 37 Cal.App.4th 1798, 1803-1804; Knoke v. Swan
(1935) 2 Cal.2d 630, 632.) The question, therefore, is whether CHD’s 2003 action
constituted a contest to McChesney’s use of the easement area.
       We find that it did not. The complaint filed by CHD in April 2003 was short and
simple. It sought quiet title, ejectment, and damages for wrongful detention of real
property. The complaint alleged that McChesney claimed an interest in CHD’s property,
the complaint denied that McChesney had any such interest, and the complaint sought to
quiet title to CHD’s property and to eject McChesney from it. Neither McChesney’s own
property nor CHD’s claim to an easement was alleged to be at issue.
       The trial court therefore erred by finding that the filing of this prior action
interrupted the period of adverse possession initiated by McChesney in 1998. (See Miller
& Lux, Inc. v. James (1919) 180 Cal. 38, 49-50 [holding that an action relating to one
water appropriation right for a property did not interrupt the statute of limitations relating
to another water appropriation right]; see also Boyer v. Jensen (2005) 129 Cal.App.4th
62, 69 [filing of complaint causes statute of limitations to be tolled or suspended as to
causes of action arising out of the same set of facts alleged in the complaint].)

                                               6
       C. The settlement agreement
       Since McChesney’s continuous use and possession of the easement area was not
interrupted by the prior lawsuit, McChesney established adverse possession by August
2003. However, another basis for the trial court’s ruling in favor of CHD was that in
2005 McChesney and CHD entered into a settlement agreement resolving the prior
action, which the court found to have “preserve[d] express easements,” including the
easement along the eastern boundary of McChesney’s property.
       As support for this finding, the trial court relied on mutual release provisions in
the settlement agreement, which read as follows: “[CHD/McChesney] shall and does
hereby generally relieve, release and discharge [McChesney/CHD] . . . and the
[McChesney/CHD] Property (except for recorded easements), unequivocally and without
reservation, of and from any and all claims, debts, liabilities, demands, obligations
promises, acts, agreements . . . actions, claims and causes of action . . . .” The court
noted that no evidence was presented concerning the parties’ understanding of the
settlement language at the time it was made. It therefore undertook its own analysis of
the “common English-language meaning and the circumstances at the time,” and finding
that the settlement preserved recorded “easements” (plural), held that it must pertain to
the easement along the eastern boundary, one of two recorded easements on the property.
       We review de novo the interpretation of contractual language. (Applera Corp. v.
MP Biomedicals, LLC (2009) 173 Cal.App.4th 769, 786.) “The fundamental goal of
contractual interpretation is to give effect to the mutual intention of the parties. (Civ.
Code, § 1636.)” (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264.) The
language of a contract governs its interpretation, if it is clear and explicit. (Civ. Code,
§ 1638.) Words in a contract are generally applied in their ordinary and popular sense.
(Civ. Code, § 1644.)
       Pursuant to the relevant language of the settlement agreement, the parties released
claims and obligations, except for recorded easements. If we were to assume, as the trial
court did, that at the time the settlement agreement was executed, the easement along the
eastern boundary of McChesney’s property was still a valid recorded easement, then we

                                              7
may agree with the trial court that the parties intended to preserve the effectiveness of the
easement. But, as found above, the easement was extinguished by adverse possession
well before the settlement agreement was signed. We must therefore determine whether
by placing the statement “except for recorded easements” in the release provisions, the
parties intended to revive an already-extinguished recorded easement.
       Based on the language of the settlement agreement, we find that they did not.
Because the recorded easement was already extinguished, it was irrelevant that CHD and
McChesney did not “release” the easement. To make the recorded easement effective,
the parties would have had to include language in their settlement agreement or other
controlling document indicating an intent to reestablish the easement. Nothing indicated
such an intent. The phrase “except for recorded easements” certainly did not show an
intent to reinstate an easement that was extinguished a year and a half before the
agreement was signed.
       We thus find that the trial court erred and should have found that McChesney
established adverse possession over the eight-foot easement area on the eastern edge of
his property. The express easement that previously applied to that area was extinguished
in August 2003.
II. Parking on Ensign Drive
       McChesney’s second contention on appeal is that the trial court erred by finding
he had no easement over CHD’s half (the south side) of Ensign Drive and no right to park
on CHD’s side of the drive. The trial court based its decision on two separate factors:
(1) that McChesney failed to produce evidence that he has an express easement over
CHD’s side of the drive, and (2) that “McChesney waived ‘ownership, or the rights to
any express or implied easement, license or entitlement to own, use or occupy any
portion of the CHD property’” in the parties’ settlement agreement.
       While McChesney argues in his appellate briefs that he has an easement over
CHD’s half of the drive, he completely fails to address the trial court’s finding that he
waived by settlement any right to easement over the southern half of the drive. As such,
we treat the issue as abandoned. (See Kelly v. CB&I Constructors, Inc. (2009) 179

                                              8
Cal.App.4th 442, 451-452; Lyons v. Chinese Hospital Assn. (2006) 136 Cal.App.4th
1331, 1336.) Because waiver by settlement agreement is a sufficient ground to find that
McChesney does not have easement rights, we affirm the trial court’s decision on this
issue.
                                       DISPOSITION
         The judgment is reversed in part and remanded to the trial court with directions to
enter an amended judgment in favor of McChesney on the claim relating to adverse
possession of the eight-foot easement area on the east side of his property—adverse
possession was established and the easement was extinguished. In all other respects, the
judgment is affirmed. The parties shall bear their own costs on appeal.
         NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                            BOREN, P.J.
We concur:


         ASHMANN-GERST, J.


         CHAVEZ, J.




                                              9
