Filed 6/12/15 Aghaeepour v. City of Loma Linda CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



ELAINE AGHAEEPOUR,

         Plaintiff and Appellant,                                        E057067

v.                                                                       (Super.Ct.No. CIVSS818178)

CITY OF LOMA LINDA et al.,                                               OPINION

         Defendants and Respondents.



         APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge.

Affirmed.

         Kassouni Law and Timothy V. Kassouni for Plaintiff and Appellant.

         Robbins & Holdaway and Richard E. Holdaway for Defendants and Respondents.

         Plaintiff and appellant Elaine Aghaeepour appeals from a judgment granted

pursuant to Code of Civil Procedure section 631.8 in favor of respondent and defendant

City of Loma Linda (City) and the former Loma Linda Redevelopment Agency (LLRA).

Aghaeepour owned property located at 25182, 25184 and 25186 Van Leuven Street in

Loma Linda (Property). A strip of land commonly known as Poplar Drive ran behind the

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Property. Poplar Drive ran across another property identified as lot 46; Poplar Drive was

not a public street. The LLRA purchased lot 46 in order to develop affordable housing.

When the LLRA was dissolved, the City was the successor agency. The City erected a

fence across Poplar Drive in order to stop vagrancy and trash dumping on lot 46; as a

result, Aghaeepour no longer had access to the rear of the Property. Aghaeepour

contended that a Declaration of Road Maintenance Agreement (RMA) signed in 1980 by

a prior owner of the Property created an express appurtenant easement over lot 46. The

trial court rejected that the RMA constituted an express easement, and Aghaeepour’s

other arguments, and found for the City.

       Aghaeepour contends on appeal as follows: (1) The RMA created an express

easement appurtenant to the Property for vehicular access over Poplar Drive; (2) based on

the existence of the easement, the trial court’s dismissal of her inverse condemnation

claim should be reversed; and (3) she did not have to establish monetary damage in order

to prevail on the inverse condemnation claim.

       We conclude that the RMA did not constitute an express easement over lot 46.1

As such, we need not address Aghaeepour’s additional claims regarding inverse

condemnation. We affirm the trial court’s judgment.


       1 On September 12, 2014, Aghaeepour filed an application to take new evidence
on appeal. This included photographs of a curb erected across the driveway of Poplar
Drive. She insisted that this was a permanent barrier as opposed to the temporary fence
previously erected by the City. Since this Court has concluded that Aghaeepour had no
express easement over Poplar Drive, this new evidence has no relevance to the issues
raised on appeal. We deny the application to take new evidence.



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                    FACTUAL AND PROCEDURAL HISTORY2

      A.     FACTS

      Aghaeepour purchased the Property, which was also identified as lot 57, in 2003.

The Property included a two-bedroom house fronting Van Leuven Street. Behind the

house was a duplex that had garages with the doors facing the back of the Property; the

garages could only be accessed on Poplar Drive. Both the house and the duplex were

accessible from Van Leuven Street. Lot 46 was the lot behind the Property. Lot 46 had

Poplar Drive running over it and provided access to Poplar Street, which intersected Van

Leuven Street. Poplar Drive consisted of concrete, asphalt and dirt. There were houses

on the lots behind the Property when Aghaeepour purchased the Property. They were

known as lots 44, 47 and 48. When Aghaeepour purchased the Property there was a stop

sign at the intersection of Poplar Street and Poplar Drive. She thought Poplar Drive was

a public street. The sign for Poplar Drive had since been removed.

      There was a wooden gate separating the garages from Poplar Drive. The gate was

on wheels and would open. Aghaeepour first discovered that a fence had been erected

across Poplar Drive at the entrance from Poplar Street in 2007.




      2   At trial Aghaeepour presented evidence of the RMA, in addition to other
theories that she had a prescriptive and/or equitable easement. However, on appeal,
Aghaeepour only claims that the trial court erred by rejecting that the RMA constituted
an express easement. As such, we only provide those facts relevant to the issue of the
express easement.


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         Aghaeepour contacted the City and advised it the fence had blocked access to her

garages. She was advised that Poplar Drive was City owned property and she would

have to prove ownership of Poplar Drive.

         In April 2008, Aghaeepour hired an attorney who wrote a letter to the City

advising it that Aghaeepour was claiming a legal easement on Poplar Drive. The City

responded that it had reviewed the title reports for the Property, and no recorded

easement had been found. In the absence of an easement, the City would not remove the

fence, which was installed for the purposes of reducing the dumping of trash on Poplar

Drive.

         Aghaeepour went to her title company and was given a copy of the RMA. It

stated in full as follows: “We hereby agree and declare that we shall bear an equal share

of any and all costs required or maintenance and repairs of said street (as per attached

easement). [¶] However this agreement shall not obligate any signer to pay for any new

pavement or additional improvements beyond its present condition. This agreement shall

be binding on subsequent owners of below mentioned property.” It was signed by the

former owner of the Property, Merlin Williams, who listed his address as “10968

Pettegrew Rd.” Five other persons signed the RMA and used addresses on “Poplar.” It

was notarized on June 19, 1980. Attached to the RMA was a legal description of the

aforementioned “easement.”

         The legal description with the deed when Aghaeepour purchased the Property did

not include an easement or any description similar to the RMA description. Aghaeepour




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did not see the RMA prior to purchasing the Property. Aghaeepour had never paid for

any maintenance to Poplar Drive.

       Vincent Kleppe was a registered civil engineer and licensed land surveyor.

Kleppe plotted the legal description attached to the RMA. According to the legal

description, it referred to a small strip of land that ran between lot 57, and on the other

side, lots 44, 47, 17 (which was above lot 46), and 48. It ran across lot 46. It was exactly

the area of Poplar Drive. The other persons who signed the RMA besides Williams

owned lots 44, 46, 47, 17 and 48 at the time it was signed. The strip of land did not go on

to lot 57.

       Kleppe noted that lots 17, 46, 44, 47 and 48 had no street access other than by

Poplar Drive. There was no recorded easement for lot 57 over lot 46. The only recorded

document was the RMA signed by the prior owner of lot 57. The legal description of the

Property was not included in the RMA. The parties stipulated that lots 17, 44, 47 and 48

had express easements recorded across lot 46. Lot 17 had an express easement recorded

over lot 44.

       Kleppe explained that when lots 44, 47, 48 and 17 were created in September

1941, they were granted an easement across lot 46. The RMA tracked the exact legal

description included in the 1941 easement creation. This predated the creation of the

RMA.

       Pamela Byrnes-O’Camb was a city clerk employed by the City. She had

previously been the secretary of the LLRA, which was established in 1980. The LLRA

purchased property around the area of Van Leuven and Poplar Streets to build affordable


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housing rental units. The LLRA purchased lots 17, 46, 44, 47 and 48 between 2003 and

2006. All of the homes that were on the properties were demolished. The LLRA planned

to build 152 senior affordable housing rental units but there was no specific approved

project and they were vacant.

       The LLRA was dissolved on February 1, 2012. The City took over some of the

responsibilities and a housing authority was created to take over the management of

LLRA properties.

       During the purchase of lot 46, it was noted that there was a legal description of an

easement over lot 46 in favor of lot 17, which was in the title report for lot 46. It was the

identical legal description attached to the RMA. Byrnes-O’Camb was not aware of the

RMA until it was faxed to her by Aghaeepour in 2008.

       In 2007, the City decided to put a fence across Poplar Drive. Byrnes-O’Camb

made the decision to put up the fence. The fence was to stop any dumping of trash or

vagrancy on the vacant lots. Byrnes-O’Camb did not notify Aghaeepour before erecting

the fence.

       Byrnes-O’Camb had driven over Poplar Drive many times. It was not maintained.

It had a lot of rocks and ruts. The fence could be removed and it was not intended to be

permanent. Poplar Drive was never a public street. It was considered a private driveway.

       The garages that were built facing Poplar Drive had been completed prior to the

RMA being signed. Aghaeepour presented evidence that it would cost $108,000 to fix

the garages to face Van Leuven Street. A real estate appraiser determined that the

Property’s value had been diminished by $151,625 due to the blocked access to the


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garages. His assessment of loss was based on an assumption there was a legal easement

behind the Property.

       B.     THE LAWSUIT

       Aghaeepour filed her first amended complaint against LLRA and the City for the

causes of action of enforcement of easement by owner of dominant tenement; quiet title

pursuant to Code of Civil Procedure section 760.010; and inverse condemnation.

Aghaeepour alleged she had an express easement over the adjacent property. She also

argued that she had obtained a prescriptive easement. The City and LLRA were subject

to the easement when it purchased the adjacent property. The City’s refusal to remove

the fence interfered with Aghaeepour’s enjoyment of the property and caused continuing

injury. She alleged as causes of action for declaratory relief that she held a prescriptive

easement or express easement over Poplar Drive. As for inverse condemnation, she

claimed the actions of the City in erecting the fence constituted a taking without just

compensation.

       The City submitted a general denial to the complaint. Aghaeepour filed a brief

prior to trial. The City also filed a trial brief. The City noted that the LLRA no longer

existed, effective February 1, 2012.

       The bench trial was held as set forth, ante. On June 7, 2012, the City filed its trial

brief in support of a motion for judgment under Code of Civil Procedure section 631.8.

       The trial court issued its statement of decision from the bench, as will be set forth

in more detail, post. Judgment was entered on July 9, 2012, in favor of the City.

Aghaeepour filed a notice of appeal on September 6, 2012.


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                                      DISCUSSION

       A.     EXPRESS EASEMENT

       Aghaeepour contends the trial court erred by concluding that the RMA did not

create an express appurtenant easement over lot 46 in favor of the Property. We reject

that there was error. The RMA did not create an easement over lot 46. Rather, the plain

language of the RMA provides that the parties agreed to maintain their portion of the

road, and there is no language that would establish an easement for ingress and egress

over Poplar Drive.

              1.     ADDITIONAL FACTUAL BACKGROUND

       After the presentation of Aghaeepour’s evidence, counsel for the City moved to

make a motion for judgment under Code of Civil Procedure section 631.8. Counsel for

the City argued the RMA did not constitute an express easement. Further, Aghaeepour

failed to establish there was a prescriptive easement. Aghaeepour’s counsel argued that

there was either an express easement, which was evidenced by the RMA, or a

prescriptive easement.

       The trial court took the matter under submission. The trial court issued its

decision orally from the bench. The trial court first found that the City had erected the

fence blocking Poplar Drive and would be responsible despite the LLRA being dissolved.

The trial court found there was no easement. The trial court stated that the RMA did

include an identification of the easement, which was Poplar Drive. It did not describe the

use but the use could reasonably be implied from the language. However, the trial court

stated, “The problem is it’s not an easement. It’s not called an easement. It doesn’t


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contain any language that talks about access to the properties. It’s entirely consistent that

this was simply a permissive use that was granted back in that time. And if the . . . other

owners of the express easement were going to use this property, but the owner of Lot 57

was going to be allowed to participate in that, sharing in the cost. That suggests to me

permissive use. [¶] There was an express recorded easement. And 57 wasn’t included in

that. There is nothing in that document that would give a subsequent purchaser of the

servient tenement notice. [¶] The address of Lot 57 is not referenced. Lot 57 is not

referenced. A legal description of Lot 57 is not referenced. The only thing that’s

referenced is there happens to be one signatory to the agreement who we know from

other documents was an owner of Lot 57. So I just reject the argument that that was an

express grant of an easement.” The trial court denied that there was any other type of

easement. Further, without an easement, there was no claim for inverse condemnation.

The trial court granted the City’s motion for judgment.

                   2.   ANALYSIS

        The trial court entered judgment pursuant to Code of Civil Procedure section

631.8, which provides, “After a party has completed his presentation of evidence in a trial

by the court, the other party, without waiving his right to offer evidence in support of his

defense or in rebuttal in the event the motion is not granted, may move for a judgment.

The court as trier of the facts shall weigh the evidence and may render a judgment in

favor of the moving party, in which case the court shall make a statement of

decision. . . .”




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       “‘The purpose of Code of Civil Procedure section 631.8 is ‘to enable the court,

when it finds at the completion of plaintiff’s case that the evidence does not justify

requiring the defense to produce evidence, to weigh evidence and make findings of fact.’

[Citation.] Under the statute, a court acting as trier of fact may enter judgment in favor of

the defendant if the court concludes that the plaintiff failed to sustain its burden of proof.

[Citation.] In making the ruling, the trial court assesses witness credibility and resolves

conflicts in the evidence. [Citations.] [¶] On appeal, we view the evidence in the light

most favorable to the judgment, and are bound by trial courts’ findings that are supported

by substantial evidence. [Citation.] But, we are not bound by a trial court’s

interpretation of the law and independently review the application of the law to

undisputed facts. [Citation.]’ [Citation.]” (Kinney v. Overton (2007) 153 Cal.App.4th

482, 487; see also Allegretti & Co. v. County of Imperial (2006) 138 Cal.App.4th 1261,

1269 [“‘When the decisive facts are undisputed, however, the reviewing court is

confronted with a question of law and is not bound by the findings of the trial court. . . .

In other words, the appellate court is not bound by a trial court’s interpretation of the law

based on undisputed facts, but rather is free to draw its own conclusion of law’”].)

       “An easement over land is real property and the holder of such easement is entitled

to recover damages when such easement is taken or damaged for public use.” (Los

Angeles County v. Wright (1951) 107 Cal.App.2d 235, 241.) “‘An easement is

appurtenant when it is attached to the land of the owner of the easement, and benefits

him as the owner or possessor of that land. The land to which it is attached is called the

dominant tenement, and the land which bears the burden, i.e., the land of another which is


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used or enjoyed, is called the servient tenement. . . . An easement in gross is not attached

to any particular land as dominant tenement, but belongs to a person individually.’

[Citation.] [¶] Because an easement in gross is personal, it may be conveyed

independent of land. [Citation.] To the contrary, an easement appurtenant cannot be

transferred to a third party or severed from the land.” (City of Anaheim v. Metropolitan

Water Dist. of Southern Cal. (1978) 82 Cal.App.3d 763, 767-768.)

       An instrument creating an easement is subject to the same rules of construction

applicable to deeds and contracts. (City of Manhattan Beach v. Superior Court (1996) 13

Cal.4th 232, 238 (Manhattan); Continental Baking Co. v. Katz (1968) 68 Cal.2d 512,

522.) “It is . . . solely a judicial function to interpret a written instrument unless the

interpretation turns upon the credibility of extrinsic evidence.” (Manhattan, at p. 238.)

       “‘Extrinsic evidence is “admissible to interpret the instrument, but not to give it a

meaning to which it is not susceptible” [citations], and it is the instrument itself that must

be given effect. [Citations.]’” (Manhattan, supra, 13 Cal.4th at p. 238.) Where the

interpretation of an instrument depends on consideration of conflicting extrinsic

evidence, any reasonable construction adopted by the trial court supported by substantial

evidence will be upheld. (In re Marriage of Fonstein (1976) 17 Cal.3d 738, 746-747;

Morey v. Vannucci (1998) 64 Cal.App.4th 904, 912-913.)

       As previously stated, we independently review the agreement and any undisputed

extrinsic evidence; however, if the resolution of the credibility of conflicting evidence

determines the interpretation, the trial court’s interpretation must be upheld if it is




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reasonable. (Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11,

22.)

       Here, looking to the language of the RMA itself, this was not a grant of an

easement in favor of lot 57 over lot 46. There is no description of lot 57 or reference to

the Property. The only reference to the Property in the RMA was the signor Merlin

Williams, who it was provided by extrinsic evidence, was the prior owner of lot 57. The

property referred to under Williams’ name is “10968 Pettegrew Rd.” There is no

mention of the Property. Further, the document is entitled a “road maintenance

agreement” and there was no mention that the document is an easement in favor of lot 57

over lot 46. There is no discussion of ingress or egress over lot 46. No purchaser of lot

46 or lot 57 would have notice that an easement had been granted over lot 46. Based on

the unambiguous language of the RMA, there was no establishment of an easement.

       Further, even if this court could somehow consider that the RMA language was

ambiguous or that the intent of the parties could not be determined by the language of the

RMA, the extrinsic evidence relied upon by the trial court in interpreting the RMA

supported the conclusion of the trial court that the parties did not intend that lot 57 would

have an appurtenant easement over lot 46. The evidence established that there was a

recorded easement that involved lots 44, 46, 47, 48 and 17; lot 57 was not part of the

recorded easement. As such, any reference to an “easement” in the RMA refers to the

easement that was recorded against lots 46 and 44. Lot 57 clearly was not included in the

grant of an easement. Further, even considering that Williams, the prior owner of the

Property, signed on to the RMA, he never used the Property address. The RMA did not


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run with the Property. At most, it bound Williams and his successors to help maintain

Poplar Drive, but did not create an appurtenant easement that ran with the Property. Any

determination that Williams and the other parties intended such an appurtenant easement

would be pure speculation. Aghaeepour could not enforce the RMA as an easement even

considering the undisputed and disputed extrinsic evidence.

       Based on the foregoing, the evidence presented failed to establish that Aghaeepour

possessed an express easement over lot 46. As such, her claims of inverse condemnation

need not be addressed as they require that Aghaeepour possess such easement rights.

                                      DISPOSITION

       The judgment is affirmed. The City is awarded its costs on appeal. (Cal. Rules of

Court, rule 8.278(a)(2).)

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                       MILLER
                                                                                        J.


We concur:


HOLLENHORST
                       Acting P. J.


CODRINGTON
                                 J.




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